I ntern ational Human Rights
PHILIP
ALSTON
Citation. Philip Alston, International Human Rights (New York, NYU Law, 2024).
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Chapter 17. Transitional Justice and Reparations
The preceding chapter explored criminal accountability as an essential response to massive violations of human rights, starting with the Nuremberg and Tokyo trials. But for all the benefits of criminal prosecutions, they can only address a small part of the overall set of challenges that arise for the survivors and victims, for the communities, for the affected state(s), and for the international community in the aftermath of such events.
The focus of the materials that follow is on what has come to be called ‘transitional justice’, and on the rapid expansion of the ‘right to an effective remedy’ (Article 8 of the UDHR), which is an integral part of international human rights law. International law has long recognized the importance of reparations, especially in the context of a state’s obligation to repair the consequences of a breach of international law for which it is responsible. In human rights law, the more common generic term is ‘remedies’ which is used to encompass reparations, as well as restitution, compensation, satisfaction, and guarantees of non-repetition. These different elements have all become crucial components of the approach to transitional justice, which was originally developed as an approach to facilitate the transition from authoritarianism to democracy, but is now also used to encompass post-conflict transitions. In addition, the relevant principles are increasingly being invoked in situations in which demands are made for comprehensive measures to redress historic and ongoing injustices, including slavery, colonialism, and the ravaging of indigenous societies.
A. TRANSITIONAL JUSTICE
Despite its prominence in the field and a burgeoning literature, transitional justice remains an ill-defined concept that is constantly evolving. The best-known definition was put forward in a 2004 report by the UN SecretaryGeneral on the rule of law and transitional justice in conflict and post-conflict societies (UN Doc. S/2004/616, para. 8):
The notion of “transitional justice” … comprises the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of largescale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. These may include both judicial and non-judicial mechanisms, with differing levels of international involvement (or none at all) and individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals, or a combination thereof.
In practice, transitional justice generally seeks to bring a flexible and tailored approach and also provides a framework within which complex and controversial trade-offs can be shaped and negotiated, often in ways that might not fit easily into formal human rights frameworks.723
A more elaborate definition, offered by Pablo de Greiff, the first UN Special Rapporteur on truth, justice and reparation, who did much to develop the concept in practice, views it:
… as a comprehensive policy implemented to cope with the legacies of massive and systematic human rights violations and abuses, and to restore or establish anew the currency of human rights. Such a policy has as its core elements truth, justice, reparations, and guarantees of non-recurrence. In addition to the immediate function each element of a comprehensive transitional justice policy is supposed to serve, namely, to impart (criminal) justice, disclose truth, redress violations, and prevent their recurrence, a comprehensive transitional justice also pursues two ‘mediate’ ends, to provide recognition to victims, not only as victims but as rights-holders, and to promote civic trust. Such a policy also pursues two ‘final’ goals, to strengthen the rule of law, and to promote social integration or reconciliation.724
723 See Transitional Justice: A Strategic Tool for People, Prevention and Peace, Guidance Note of the UN Secretary-General (2023).
724 P. de Greiff, ‘The Vernacularization of Transitional Justice: Is Transitional Justice Useful in Pre-conflict Settings?’, in P. Alston (ed.), Capturing the Complexity of Human Rights (2024) 117.
The implications of the ‘right to an effective remedy’ in terms of the phenomenon of impunity and the granting of amnesties long remained unclear. Emblematic cases emerged in Chile and Argentina in the aftermath of the military dictatorships of the 1970s. In Chile, the regime of General Augusto Pinochet issued Amnesty Decree Law No. 2191 on 10 March 1978, which provided a wide-ranging amnesty for crimes committed in the years following the 1973 coup d’état.
In Argentina, prosecutions of military personnel that took place after the return to democracy in late 1983 generated a strong military backlash. To avoid chaos, the government of President Raúl Alfonsín invoked a ‘compelling need for national reconciliation and consolidation of the democratic system’ and passed the ‘full stop law’ of 24 December 1986 to limit new prosecutions. But continued judicial activity led to the ‘due obedience law’ of 5 June 1987, which granted automatic immunity from prosecution to all members of the military except top commanders. Within days, the Supreme Court upheld its constitutionality.
Setting Relevant Human Rights Standards
It was against this background that two separate, but ultimately closely related, standard-setting initiatives emerged within the United Nations. In the mid-1980s, Louis Joinet undertook a study of amnesty laws (UN Doc E/CN.4/Sub.2/1985/16/Rev.1 (1987)) which laid the foundations for a ‘Set of Principles for the protection and promotion of human rights through action to combat impunity’ (UN Doc E/CN.4/Sub.2/1997/20/Rev.1 (1997)). Joinet also introduced transitional justice as a so-called fourth pillar of anti-impunity measures focused on the non-recurrence of violations.
The Joinet principles on impunity were subsequently updated by Diane Orentlicher and presented to the UN Commission on Human Rights in 2004 (UN Doc E/CN.4/2004/88 (2004)). Although the Commission ‘noted’ them as ‘a guideline to assist States’, it never formally endorsed them. They have, nevertheless, become an ‘authoritative reference point’ in discussions about impunity,725 which they define broadly as arising whenever a state fails: (i) to investigate serious human rights violations; (ii) to prosecute, try, and duly punish perpetrators of such violations; (iii) to provide victims with effective remedies and reparation for the harm suffered; and (iv) to take the appropriate steps to prevent a repetition of violations.
A separate UN process, begun in 1989 and led by Theo van Boven, focused on the ‘right to restitution, compensation and rehabilitation for victims of gross violations of human rights’. His study led to the adoption of an important set of guidelines on reparations in 2005. Before examining those, it is important to note that the Joinet study had originally focused also on economic, social and cultural rights, but in 1994 the Commission split the study into two separate tracks. Although a final report by El Hadji Guissé was presented in relation to these rights (UN Doc. E/CN.4/Sub.2/1997/8 (1997)), no tangible outcome emerged as a result. Similarly, because the van Boven study was undertaken against the background of the crimes listed in the Rome Statute, it too failed to explore where these rights fit into the broader picture of reparations. Instead, principle 26 noted that they are relevant to all violations.
BASIC
PRINCIPLES AND GUIDELINES ON THE RIGHT TO A REMEDY AND REPARATION FOR VICTIMS OF GROSS VIOLATIONS OF INTERNATIONAL HUMAN RIGHTS LAW AND SERIOUS VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW GENERAL ASSEMBLY RES. 60/147 (2005)
…
IV. Statutes of limitations
6. Where so provided for in an applicable treaty or contained in other international legal obligations, statutes of limitations shall not apply to gross violations of international human rights law and serious violations of international humanitarian law [Note: this phrase is abbreviated below to ‘gross/serious violations’] which constitute crimes under international law.
725 F. Haldemann and T. Unger (eds.), The United Nations Principles to Combat Impunity: A Commentary (2018) 4.
7. Domestic statutes of limitations for other types of violations … should not be unduly restrictive.
VII. Victims’ right to remedies
11. Remedies for [gross/serious violations] include the victim’s right to the following as provided for under international law:
(a) Equal and effective access to justice;
(b) Adequate, effective and prompt reparation for harm suffered;
(c) Access to relevant information concerning violations and reparation mechanisms.
IX. Reparation for harm suffered
15. Adequate, effective and prompt reparation is intended to promote justice by redressing [gross/serious violations]. … In cases where a person, a legal person, or other entity is found liable for reparation to a victim, such party should provide reparation to the victim or compensate the State if the State has already provided reparation to the victim.
…
18. In accordance with domestic law and international law, and taking account of individual circumstances, victims of [gross/serious violations] should, as appropriate and proportional to the gravity of the violation and the circumstances of each case, be provided with full and effective reparation, as laid out in principles 19 to 23
19. Restitution should, whenever possible, restore the victim to the original situation before the [gross/serious violations] occurred. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one’s place of residence, restoration of employment and return of property.
20. Compensation should be provided for any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case, resulting from [gross/serious violations], such as:
(a) Physical or mental harm;
(b) Lost opportunities …;
(c) Material damages …;
(d) Moral damage;
(e) Costs … .
21. Rehabilitation should include medical and psychological care as well as legal and social services.
22. Satisfaction should include, where applicable, any or all of the following:
(a) Effective measures aimed at the cessation of continuing violations;
(b) Verification of the facts and full and public disclosure of the truth to the extent that such disclosure does not cause further harm or threaten the safety and interests of the victim … [and others];
(c) The search for the whereabouts of the disappeared, for the identities of the children abducted, and for the bodies of those killed …;
(d) An official declaration or a judicial decision restoring the dignity, the reputation and the rights of the victim and of persons closely connected with the victim;
(e) Public apology, including acknowledgement of the facts and acceptance of responsibility;
(f) Judicial and administrative sanctions against persons liable for the violations;
(g) Commemorations and tributes to the victims;
23. Guarantees of non-repetition should include, where applicable, any or all of the following measures, which will also contribute to prevention:
(a) Ensuring effective civilian control of military and security forces;
(b) Ensuring that all civilian and military proceedings abide by international standards of due process, fairness and impartiality;
(c) Strengthening the independence of the judiciary;
(d) Protecting persons in the legal, medical and health-care professions, the media and other related professions, and human rights defenders;
(g) Promoting mechanisms for preventing and monitoring social conflicts and their resolution; (h) Reviewing and reforming laws … .
X. Access to relevant information concerning violations and reparation mechanisms
24. … [V]ictims and their representatives should be entitled to seek and obtain information on the causes leading to their victimization and on the causes and conditions pertaining to the [gross or serious violations] and to learn the truth in regard to these violations. …
Note that the Reparations Guidelines combine a focus on human rights law and international humanitarian law, thus overcoming proposals for the adoption of two separate instruments. The situation of non-state actors, such as corporations, is dealt with obliquely in principle 15.
Both the Reparations Guidelines and the Principles on Impunity reflect the principles contained in the International Law Commission’s draft Articles on Responsibility of States for Internationally Wrongful Acts (see Ch. 2, above), which were also adopted in 2001. These two ‘soft law’ instruments have heavily influenced the approach adopted within the field of transitional justice in the twenty-first century. It has been suggested that transitional justice developed as a response to twentieth century ‘atrocity crimes’ (defined by reference to the Rome Statute), but this is a retrospective application of a term that was not in use at the time and is much too narrow to describe the broad range of circumstances in which efforts were made to seek remedies that went well beyond condemnations and prosecutions in response to major violations.
Before examining the application of these various principles to historical and current situations involving claims for reparations, we consider three important sets of issues: the ‘peace versus justice’ debate, the granting of amnesty to offenders, and the role of truth commissions. Then follows a brief review of the current state of the art in transitional justice.726
One important set of questions involve how institutional efforts to remedy mass human rights violations should address concerns that such interventions will promote war or social conflict. Efforts to address past wrongdoing, for example, may threaten to unravel a fragile peace agreement or the transition from an authoritarian past. Concerns about such consequences often relate to the prospect of criminal trials. These concerns, however, can also apply to a range of other measures. For instance, a truth commission, under certain circumstances, could be more likely to rupture social relations and foster notions of collective guilt rather than encourage reconciliation. Lustration policies – precluding former perpetrators and their supporters from participating in a successor government – might obstruct social integration and political stability. Civil suits against particular individuals or organizations, such as companies formerly involved in apartheid South Africa, might undermine government efforts to encourage those and other actors to rebuild the country.
The important question may not be whether to adopt particular institutional devices, but that of timing. When is it appropriate, or most feasible, to deal with the past through these justice and accountability mechanisms? A central question may also be about who decides. That is, what institution or set of actors should have the
726 See generally: Security Council Report, Research Report: Transitional Justice: What Role for the UN Security Council (2022).
authority to decide whether to pursue various strategies? Are local actors best situated to make those decisions, international actors, judicial or political bodies? Does it matter if local actors generally prefer amnesties? What if local actors prefer prosecution, especially for retributive or symbolic reasons, despite a more pragmatic judgement of international exports and institutions? Should the structure of international and domestic legal institutions include a presumption favouring (or disfavouring) certain justice and accountability mechanisms? What factors should overcome that presumption?
Finally, how should decision-makers weigh justice and peace in the instant case versus the precedent set and consequences for dealing with situations of mass violations in the future? For example, trials in the instant case may be important to promoting norms and expectations of punishment in other countries or in the same country’s political future. Alternatively, trials might encourage repressive leaders or combatants in the future to conclude that amnesties are not reliable and that conceding political power is not in their best interest.
1. The ‘Peace Versus Justice’ Debate
At the international level, this debate has manifested itself most prominently in arguments about whether prosecuting the leader of one of the parties to an ongoing conflict will incentivize that person to prolong the hostilities and thus delay peace. At the national level, as we shall see below, the debate has focused on whether such individuals should be granted an amnesty either before or after prosecution in the name of healing societal wounds more quickly.727
The experience of the ICTY and the ICC provide some insights from experience. Analysis by Jacqueline McAllister, in ‘The Peace versus Justice Debate Revisited’, in Carsten Stahn et al. (eds.) Legacies of the International Criminal Tribunal for the Former Yugoslavia (2020) 523, at 537, reached the following conclusions about the impact of ICTY prosecutions on peace efforts:
First, the ICTY did in fact facilitate peace efforts. Second, [it] did so by providing US mediators with leverage for ensuring that only key leaders participated in talks … . … Third, … [it] also facilitated US mediation efforts by agreeing to monitor and vet entitylevel indictments …. [This] helped to deescalate a major post- Dayton crisis by effectively reassuring former belligerents that they would not be subject to victor’s justice.
…
… [Why might the ICTY] have facilitated, versus undermined, peace efforts. In order for ICTs to increase the costs of noncompliance with ICL, and thereby generate leverage for mediators, they need to be able to conduct legal proceedings. … ICT officials must negotiate with a range of parties to effectively conduct investigations, secure apprehensions, and hold trials. … Prosecutorial support for ICTs has steadily increased ever since the ICTY’s establishment. Indeed, the Tribunal’s own successes in eventually apprehending an array of high- level suspects including Slobodan Milošević are indicative of this trend … . Kathyrn Sikkink points to such developments as evidence of a ‘justice cascade’, or ‘a fundamental shift [in] legitimacy of the norm of individual criminal accountability for human rights violations and an increase in criminal prosecutions on behalf of that norm’. Thus, it is now harder especially for the top combatant leaders who are at the centre of the ICC’s efforts to dodge criminal prosecution.
However, recent research suggests that greater prosecutorial support, combined with the ICC’s focus on high- level suspects, can actually make the process of negotiating peace far more difficult. For instance, Alyssa Prorok finds that both factors have made it more difficult for top leaders facing possible prosecution to attend talks for fear they might be arrested and transferred to The Hague. In addition, because amnesty is off the table, it is
727 In general, amnesties foreclose prosecutions for stated crimes (often by reference to crimes or conduct that took place before a stated date), whereas pardons release convicted human rights offenders from serving their sentences (or the remainders thereof if they are prisoners at the time of pardon). Nonetheless, usage often views these terms as interchangeable, so that persons not yet tried are ‘pardoned’ and prisoners serving sentences are granted an ‘amnesty’.
more challenging to negotiate a settlement. The situation was quite different for the ICTY during the Yugoslav wars. The Tribunal had an immensely challenging time securing prosecutorial support, especially early on. … [T]he OTP did not end up targeting many top leaders until after peace negotiations had concluded. This suggests that regional leaders potentially had much less to fear than their contemporary counterparts in other civil conflicts, assuming they did not run afoul of the ICTY’s then-main enforcement partner: the US. Thus, the ICTY perhaps facilitated, versus undermined, peace efforts both because it was cautious in indicting top leaders and because lead mediators effectively exercised discretion over suspect arrests and transfers. …
The impact of ICC involvement can also cut both ways, according to Alyssa Prorok, ‘The (In)compatibility of Peace and Justice? The International Criminal Court and Civil Conflict Termination’, 71 Int’l Org. (2017) 213, at 239:
Empirical tests … support [the] argument [that] ICC involvement significantly reduces the likelihood of conflict termination when the risk of domestic punishment is low. Its impact diminishes, becoming insignificant, as the domestic punishment risk increases. …
… [T]he court’s broader influence is complex and multifaceted: ICC ratification improves prospects for peace in warring states, while active involvement by the court has the opposite impact. The ICC, therefore, is not universally benign or entirely harmful
… [W]hile the ICC’s primary mandate is the pursuit of justice, the results indicate that its broader effects on the process of conflict termination must be taken into account by policy-makers and the court itself. In particular, the fact that ICC involvement can prolong conflict has important implications for how the court pursues investigations in ongoing conflict situations in the future. It may be in the best interest of peace, for example, for the ICC to investigate and pursue arrests and trials only after a settlement has been reached. This is particularly true because the court’s most detrimental impact comes when conditions for successful settlement improve domestically (that is, as the domestic punishment risk diminishes), suggesting that the court is doing harm in the very settings where successful settlement may otherwise have been possible. …
An issue that is related to the peace versus justice debate is whether impunity should be considered the greatest threat to respect for human rights, and should thus be the pre-eminent concern of the international community. For some commentators, criminal prosecution might not be the sole path to eliminate impunity, but it is the most important. Thus, Kate Cronin-Furman, in Hypocrisy and Human Rights: Resisting Accountability for Mass Atrocities (2022) 117, argues ‘that the repeated failures to protect or avenge the victims of mass atrocities’ are a deplorable feature of the international system and one that must be countered by determined efforts to gather and process evidence of mass atrocities so that accountability can eventually be exacted from perpetrators. Her view is that victim communities seek, ‘more than anything else … the designation of their persecutors as human rights abusers’.
Oher researchers have reached different conclusions. Payam Akhavan et al., in ‘What Justice for the Yazidi Genocide?: Voices from Below’, 42 Hum. Rts. Q. (2020) 1, describe the results of a survey of the preferences expressed by survivors of the sustained assaults by the Islamic State of Iraq and the Levant (ISIL) on Iraq’s Yazidi minority, characterized by many sources as a genocide. The interviewers sought to elicit an understanding of what ‘justice’ might mean for the survivors. One question concerned the interviewees’ preference for retributive justice, such as prosecutions before the ICC or another such tribunal, or restorative justice involving a more wide-ranging set of measures:
What emerged is an understanding of justice principally focused on local issues, immediate concerns, agency, and prospects of a better future features more readily achievable through local restorative justice rather than global punitive justice. This included a predilection for financial assistance, truth-telling and public recognition, and a need for healing and reconciliation among local communities and, more intimately, neighbors.
The authors concluded that scholars and advocates need to do more to listen to the voices from below and not assume that they define ‘justice’ as the pursuit of prosecutions: ‘The early and continuing prioritization of the ICC, and the near-singular focus of energy and resources on this objective, has undermined the pursuit of more restorative forms of justice.’ The initiatives by the Prosecutor in relation to both Ukraine and Palestine, considered in the preceding chapter, have potentially put the peace versus justice debate in a whole new light. Consider the observations in relation to Ukraine by Carsten Stahn, in ‘The ICC in Its Third Decade: Setting the Scene’, in Carsten Stahn and Rafael Braga da Silva (eds.), The International Criminal Court in Its Third Decade: Reflecting on Law and Practices (2024) 3, 19-20:
The warrants create a certain point of no return. They signal that there can be no sustainable peace without leadership responsibility. Politically, they may be interpreted as an effort to promote regime change in Russia. This … may create a ‘lock in’ and prolong hostilities or intensify conflict. It communicates to the Russian government ‘that its options are to win or to lose power and face prosecution’. Under such circumstance, the continuation of the war may become ‘existential’.
Russian officials may be reluctant to engage in peace negotiations, while facing the threat of prosecution in their aftermath. Once issued by a Chamber, warrants cannot simply be withdrawn by Prosecution. The power of the Security Council to defer investigations and prosecutions under Art. 16 of the ICC Statute is only temporary. The OTP has adopted a narrow reading of the interests of justice clause, which implies that considerations of peace and security do not per se bar accountability. Dealing with the ICC warrants may thus require creative strategies, or even a re-calibration of existing ‘no peace without justice’ formulas. …
The Ukraine warrants … [have] contributed to the stigmatization of crimes, restricted potential travel options, and highlighted the global relevance of the Court in the ongoing conflict. They have prompted new discussions on cooperation between the ICC and the US. However, they also carry risks. They reveal political divisions among states parties. They make the ICC vulnerable to lawfare. In case of lack of compliance, the Court will be perceived as a toothless tiger. Those who are critical of the Court’s strong focus in Ukraine, and risks of double standards, will likely use the Ukraine as a precedent to assess the decisiveness and effectiveness of response in other ongoing or future ICC situations.
2. Amnesties
A 2009 study by Diane Orentlicher for the UN Office of the High Commissioner for Human Rights entitled Rule-of-law tools for post-conflict States: Amnesties (UN Doc. HR/PUB/09/1 (2009)) defines amnesties as legal measures that have the effect of:
(a) Prospectively barring criminal prosecution and, in some cases, civil actions against certain individuals or categories of individuals in respect of specified criminal conduct committed before the amnesty’s adoption; or
(b) Retroactively nullifying legal liability previously established.
The debate over the acceptability of amnesties in situations involving serious human rights violations involves balancing various elements. These include legal obligations to prosecute, the central importance of ensuring accountability, and an assessment of the impact of an amnesty on other legitimate goals. In 2013, a group of experts adopted the Belfast Guidelines on Amnesty and Accountability, designed to guide decisions made ‘in the midst or in the wake of conflict or repression.’ The Guidelines acknowledged that amnesties might, at different stages, be used for:
(viii) encouraging combatants to surrender and disarm
(ix) persuading authoritarian rulers to hand over power
(x) building trust between warring factions
(xi) facilitating peace agreements
(xii) releasing political prisoners
(xiii) encouraging exiles to return
(xiv) providing an incentive to offenders to participate in truth recovery or reconciliation programmes.
The Guidelines distinguish ‘illegitimate amnesties’ which ‘are generally unconditional and have the effect of preventing investigations and ensuring impunity for persons responsible for serious crimes’, from ‘legitimate amnesties’, which are ‘primarily designed to create institutional and security conditions for the sustainable protection of human rights, and require individual offenders to engage with measures to ensure truth, accountability and reparations.’
In seeking to link the concepts of amnesty and accountability, the Guidelines suggest that ‘amnesties can be designed to complement or operate sequentially with judicial and non-judicial accountability processes’ to:
a) deliver some form of truth and accountability for cases which are not selected for prosecution
b) focus limited prosecutorial resources on those cases which are deemed to be of a higher priority or where the perpetrator has failed to fulfil the conditions of the amnesty
c) contribute to a broader range of conflict transformation goals than an exclusive focus on prosecutions
d) deliver greater consistency with a state’s international obligations than broad amnesties that prevent all prosecutions.
Monika Nalepa, in After Authoritarianism: Transitional Justice and Democratic Stability (2022) 1 draws attention to the precedent set by Spain, and suggests that a utilitarian calculus might play some role in framing policy responses:
After [Generalissimo] Francisco Franco died, the elites who succeeded him resolved on behalf of the Spanish people to let bygones be bygones. Formally, in 1977, they passed an Amnesty Law; informally, they agreed to a “Pact of Forgetting.” The rationale offered for this deliberate decision was to [choose] democracy over justice. Although the Francoist regime had committed numerous atrocities during the civil war of 1936–1939 as well as after the Nationalists’ victory, Spanish elites decided to “seal the archives” of the Guardia Civil and the Policia Armada (Franco’s secret police) and not attempt any reckoning with the past. Even private conversation concerning the civil war and the authoritarian regime that succeeded it was rendered taboo. This “Pact of Forgetting” was shared widely by all sides of the political spectrum, including the communists against whom Franco’s Nationalists had fought in the civil war. …
The informal pact became so entrenched that when, in 2007, a socialist government tried to revisit the past by proposing the mildest of transparency measures, victim rehabilitation, it was met with staunch criticism. The Spanish example stood in contrast with its geographic and temporal neighbors, Greece and Portugal, both of which thoroughly purged their former authoritarian leadership and its agencies. …
Incidentally, neither Greece nor Portugal fared as well recovering from their authoritarian pasts as Spain. … Scholars of comparative democratization … overwhelmingly agreed that Spain consolidated because of letting bygones be bygones rather than despite it. …
It is then hardly surprising that when twenty years later, a wave of democratization spread across Eastern Europe, Spain’s approach to reckoning with the authoritarian past was
used as a model for (not) dealing with the legacies of communism. In Poland, this approach was summarized with the term “gruba kreska” (“thick line”). Although originally intended to represent the idea of a clean slate for the new noncommunist cabinet, which would only be held accountable for policies implemented after assuming office, it quickly came to represent the idea of forgiving the communists for all human rights violations committed during their 45-year-long tenure in Poland.
Conclusion: Beyond Ritual Sacrifices
… In democracies recovering from authoritarian rule or civil war, politicians trying at all costs to prevent their skeletons from coming out of the closet fail at being effective representatives and betray the interests of their voters. In an effort to bury the truth about skeletons in the closet they succumb to blackmail. The advice to “let bygones be bygones,” “forgive and forget,” or “let sleeping dogs lie” especially when applied to crimes committed secretly under the authoritarian regime may be deadly for a new polity. At the same time, new democracies’ temptation to punish known members and collaborators of the former regime is a form of “ritual sacrifice.” Although it signals to some voters a clean break with the former regime, it has little beyond symbolic significance and may be equally crippling as the decisions to let sleeping dogs lie. There is a caveat, however, to the advice of forgoing purges of known collaborators of the authoritarian regime. When the interests of those working for the ancien régime depart so much from those of the new democratic politicians that their expertise is worth surrendering, purges should be used. The bottom line is then, that purges should be applied sparingly, while transparency should be used widely.
In relation to Spain, some changes were introduced in the 2007 Historic Memory Law, but these were limited in scope and a range of UN mechanisms called for a very different approach. In 2009, the UN Human Rights Committee (UN Doc. CCPR/C/ESP/CO/5, para. 9) recommended that Spain should:
(a) consider repealing the 1977 amnesty law; (b) take the necessary legislative measures to guarantee recognition by the domestic courts of the non-applicability of a statute of limitations to crimes against humanity; (c) consider setting up a commission of independent experts to establish the historical truth about human rights violations committed during the civil war and dictatorship; and (d) allow families to exhume and identify victims’ bodies, and provide them with compensation where appropriate.
In 2014, the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-repetition (UN Doc. A/HRC/27/56/Add.1) refuted many of the government’s arguments against such measures. The 2022 Democratic Memory Law represented a considerable but far from comprehensive change of heart:
The new law creates the public prosecutor’s office for human rights and democratic memory, to investigate past violations and to promote the search for the whereabouts of the disappeared. In addition, it broadens the definition of ‘victim’ and gives due recognition to children, who were abducted and adopted without parental consent, to their parents and siblings. It also stipulates that it is the responsibility of the state to carry out exhumations and the search for persons who disappeared during the Civil War and the Franco dictatorship.728
The law also: makes the state responsible for recovering the remains of victims buried in unmarked graves; establishes a national DNA database; requires schools to teach about the civil war and the dictatorship; and pardons people convicted of political crimes during the Franco era. It does not lift the amnesty that prevents prosecutions of state officials who committed crimes during the relevant period, and does not provide financial compensation for victims.
728 C. Fernandez-Torne and P. Ouziel, ‘Democratising and decolonising Spain: the limits of the new law on memory’, Justice Info (5 December 2022).
In September 2023, the United Kingdom Parliament adopted the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023. In December 2023, the Government of Ireland announced that it would bring an interstate case under the ECHR challenging the Act’s immunity provisions ‘which shut down existing avenues to truth and justice for historic cases, including inquests, police investigations, Police Ombudsman investigations, and civil actions.’ It added that reviews by the proposed Independent Commission for Reconciliation and Information Recovery ‘are not an adequate substitute for police investigations, carried out independently, adequately, and with sufficient participation of next of kin.’
The examples mentioned above are mostly concerned with historical situations, but the granting of amnesties is also often raised in the context of negotiating peace deals. In 1999, in the context of negotiating the Lomé Accords to end the Sierra Leone civil war, the UN announced a policy of not agreeing to amnesty for war crimes, crimes against humanity, or genocide. Geoff Dancy surveyed all amnesties enacted in civil war contexts since 1946. In ‘Deals with the Devil? Conflict Amnesties, Civil War, and Sustainable Peace’, 72 Int’l. Org. (2018) 387, at 416, he concludes that:
… [O]ffers of legal amnesty can be used to halt intrastate conflicts, … subject to three ancillary rules. The first rule is that amnesties work better if they are enacted in the negotiation phase. … If and when armed combatants get to the negotiation phase, amnesties may serve as a more useful tool. They are still a signal but of costly commitments to peace. The trick is designing them in a way that is balanced, granting some concessions without making the deal too costly for the government in the future.
… The second finding is that amnesties with explicit immunities for serious violations are not associated with a lower risk of conflict recurrence. This challenges the conventional wisdom among peacemakers that forgiving human rights abuses may be a necessary element of war-ending bargains. In the last sixty years, that is simply not the case. [Immunities for serious violations] are a roll of the dice. On one hand, they may encourage peace discussions with recalcitrant groups but, on the other hand, they weaken the government’s position. Immunities for terrible acts create a negative reputation for the governments that offer them. Governments will be punished, by civilian audiences and by rebels, for making deals that are too accommodating. Rebels will see no reason not to fight against such conciliatory leaders in the future. Civilians will pressure those leaders to renege on the deal and go back to war. Negotiators need to be clear with rebel and state leaders that human rights violations especially if they are extreme will have to be investigated. That is now part of the political landscape following conflicts. Ignoring the problem of human rights atrocities is no longer realistic and it was never very effective anyway.
The third finding is that amnesties are also more effective when they are embedded within larger processes of peace. … [W]hen they are passed following lengthy and iterated processes of negotiation often as part of larger postconflict deals to release political prisoners, forgive former soldiers of crimes against the state, or to help demobilize the opposition they are sometimes successful.
… [A]mnesties that bring together various veto players, spoilers, and combatant groups, while being careful not to provide impunity for atrocity, help countries stay at peace following civil war.
Amnesty Laws in the Regional Courts
Both the Inter-American and the European regional courts have ruled on amnesty laws, but a uniform approach is yet to emerge. Jorge Contesse, in ‘Resisting the Inter-American Human Rights System’, 44 Yale J. Int'l L. (2019) 179, at 188, describes the approach of that court:
In … Barrios Altos v. Peru, [2011 Inter-Am. Ct. H.R. (ser. C) No. 75, P 39] the Inter-American Court found that Peru had international responsibility for the violation of the right to life, the right to humane treatment, the
right to a fair trial, and judicial protection of fifteen individuals killed by a death squad that operated under the autocratic regime of former Peruvian president Alberto Fujimori. The Court declared that amnesty laws “violate non-derogable rights recognized by international human rights law,” [and] that such laws “lack legal effect.”
Barrios Altos had a major impact on domestic judges. District courts issued rulings ordering the reopening of criminal investigations in cases where courts had applied the amnesty laws. And the Peruvian Constitutional Court embraced the Inter-American Court's jurisprudence in its entirety … .
…
In 2005, the Argentinean Supreme Court overruled a 1987 decision and declared unconstitutional several of the country's amnesty laws. … [The Court found that] the Barrios Altos case addressed all questions about State obligations under international anti-impunity doctrines … [and rendered] Argentina's amnesty laws null and void. …
In Europe, a Grand Chamber of the European Court of Human Rights (ECtHR), in Marguš v. Croatia (App. No. 4455/10, judgment of 27 May 2014) considered the case of a Croatian Army commander who was convicted of war crimes in 2007, following an earlier decision in 1997 to grant him amnesty pursuant to the 1996 General Amnesty Act covering all criminal offenses committed in connection with the war in Croatia in the preceding six years:
137. The Court notes the interveners’ argument that … the granting of amnesties as a tool in ending prolonged conflicts may lead to positive outcomes.
138. The Court also notes the jurisprudence of the Inter-American Court of Human Rights, notably the … cases of Barrios Altos, Gomes Lund et al., Gelman and The Massacres of El Mozote and Nearby Places, where that court … found that no amnesties were acceptable in connection with grave breaches of fundamental human rights since any such amnesty would seriously undermine the States’ duty to investigate and punish the perpetrators of such acts. It emphasised that such amnesties contravene irrevocable rights recognised by international human rights law.
(γ) The Court’s conclusion
139. In the present case the applicant was granted amnesty for acts which amounted to grave breaches of fundamental human rights such as the intentional killing of civilians and inflicting grave bodily injury on a child, and the [Croatian] County Court’s reasoning referred to the applicant’s merits as a military officer. A growing tendency in international law is to see such amnesties as unacceptable because they are incompatible with the unanimously recognised obligation of States to prosecute and punish grave breaches of fundamental human rights. Even if it were to be accepted that amnesties are possible where there are some particular circumstances, such as a reconciliation process and/or a form of compensation to the victims, the amnesty granted to the applicant in the instant case would still not be acceptable since there is nothing to indicate that there were any such circumstances.
Having reviewed subsequent ECtHR case law, Juan-Pablo Pérez-León-Acevedo, in ‘The European Court of Human Rights vis-à-vis amnesties and pardons’, 26 Int’l J. Hum. Rts. (2022) 1107, notes that the Court has still not provided a comprehensive statement of its response to amnesties. Nevertheless, he suggests four factors are central to its approach. The first is:
[t]he national process through which amnesties/pardons have been adopted, applied, and/or validated … . This … includes which organ granted these measures and through which normative instrument, whether these measures apply to serious abuses in national proceedings, and whether subsequent actions adopted … negatively affected or changed originally admissible amnesties/pardons.
… [The second is the] margin of … appreciation has generally been the factor that has most expanded the degree of ECtHR’s deference … . …
… [Third], poor levels of state compliance with international obligations on human rights … require the ECtHR to constrain its deference to states. This occurs particularly (but not exclusively) when state officers committed atrocities … . …
[Fourth], the impact [on] legitimate goals of peace, reconciliation, or democratic transition … may increase the degree of ECtHR’s deference … . to states as opposed to exemption measures seeking impunity, which constrain such deference … provided that: the state demonstrates that these measures are genuinely adopted to achieve the said legitimate aim(s) rather than impunity; and/or when these measures are accompanied with other transitional justice mechanisms such as reparations.
In other words, the Court has neither adopted an absolute prohibition on amnesties for certain serious crimes, nor closed the door on doing so. Miles Jackson, in ‘Amnesties in Strasbourg’, 38 Oxf. J. Leg. Stud. (2018) 451, argues that if, when the time comes, it opts for the first approach, it will problematically discount ‘the difficult and complex choices facing political decision makers in peace negotiations, and … the value of amnesties in securing other legitimate ends’:
First, … to treat the duty to prosecute as absolute excludes from consideration other relevant interests. This exclusion prioritises the ends served by criminal trials in the face of genuinely conflicting moral and political demands. Secondly, [it would] inhibit the way that the margin of appreciation ought to operate in amnesty cases. … Thirdly, [it would inhibit] the scope of deference that courts ought to provide to political decision makers on a question such as this. … Fourthly, to treat the duty to prosecute as absolute renders it non-derogable under article 15(2) ECHR. This … [upsets] the delicate structure of article 15(2) … and closes a valuable means of political flexibility built into the Convention.
QUESTION
What are the most compelling arguments in favour of an absolute prohibition on amnesties for individuals accused of crimes such as murder, torture, or crimes against humanity?
3. Truth Commissions
Truth commissions are perhaps the best-known component of transitional justice. They have been defined as: … temporary, officially sanctioned bodies with mandates to investigate specific periods of past state abuses. They signal an official determination, genuine or not, to establish the truth about past abuses and to avoid their recurrence. Subject to the creativity of their designers, TCs are able to: provide official acknowledgment of abuses and rewrite history; focus on institutional and structural factors that permitted such abuses; make recommendations for legal and institutional reforms; provide information that is useful for subsequent prosecutions and vetting of abusive public officials; and create a basis for victim reparations and memorialization.729
The groundwork for the creation of well over fifty such commissions between 1984 and today was laid by the gradual recognition of a ‘right to the truth’ in international law. General Assembly Resolution 3220 (XXIX) (1974) recognized that ‘the desire to know the fate of loved ones in armed conflicts is a basic human need’. Building on this recognition, Article 32 of the 1977 First Additional Protocol to the Geneva Conventions provided for ‘the right of families to know the fate of their relatives’. The reference to a ‘right’ was a subject of considerable debate in the drafting process.
729 G. Dancy and O. T. Thoms, ‘Do Truth Commissions Really Improve Democracy?’, 55 Comp. Pol. Studs. (2022) 555. See also the pioneering text by R. Teitel entitled Transitional Justice (2000).
Within institutions dedicated to human rights law, the right to the truth first found expression in the context of missing and disappeared persons. The Inter-American Commission on Human Rights and Court of Human Rights, the UN Working Group on Enforced or Involuntary Disappearances (in its first report: UN Doc. E/CN.4/1435 (1981)) and the Human Rights Committee developed a doctrine recognizing the right of families to know the fate of their close relatives. The right was codified in Article 24 of the 2006 International Convention for the Protection of All Persons from Enforced Disappearance. And, in 2010, the Working Group adopted a General Comment on the Right to the Truth, characterizing it as ‘both a collective and an individual right’ (UN Doc. A/HRC/16/48 (2011), 14).
Recognition of the right to the truth has expanded well beyond disappearances,730 as reflected in the Principles on impunity and the Guidelines on reparations. In 2009, the Human Rights Council adopted Resolution 9/11 affirming the right to the truth:
Stressing the importance for the international community to endeavour to recognize the right of victims of gross violations of human rights and serious violations of international humanitarian law, and their families and society as a whole, to know the truth regarding such violations, to the fullest extent practicable, in particular the identity of the perpetrators, the causes and facts of such violations, and the circumstances under which they occurred.
The organs of the Inter-American system also played a central role in developing the concept, which has also been taken up by the other regional system, as noted in the Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Pablo de Greiff (UN Doc. A/HRC/24/42 (2013)):
19. At the regional level, the Inter-American Commission … [and Court] were at the forefront of developing jurisprudence on the right to truth of the victim, his or her next of kin, and the whole of society. Regarding the collective nature of this right, the Commission observed [in 1986] that “every society has the inalienable right to know the truth about past events, as well as the motives and circumstances in which aberrant crimes came to be committed, in order to prevent repetition of such acts in the future”. In [2013], the Court framed the right to truth in the form of a positive State obligation, stressing that “the next of kin of the victims and society as a whole must be informed of everything that has happened in connection with the said violations”. The African Commission on Human and Peoples’ Rights has recognized the right to truth as an aspect of the right to an effective remedy for a violation of the African Charter on Human and Peoples’ Rights. In connection with gross human rights violations committed in the context of countering terrorism, the European Court of Human Rights acknowledged the right to truth not only for victims and their families but for the general public as well.
20. The right to truth entitles the victim, his or her relatives and the public at large to seek and obtain all relevant information concerning the commission of the alleged violation, the fate and whereabouts of the victim and, where appropriate, the process by which the alleged violation was officially authorized. With this legal framework in mind, in the aftermath of repression or conflict, the right to truth should be understood to require States to establish institutions, mechanisms and procedures that are enabled to lead to the revelation of the truth, which is seen as a process to seek information and facts about what has actually taken place, to contribute to the fight against impunity, to the reinstatement of the rule of law, and ultimately to reconciliation.
Over the past two decades, truth-telling has also come to play an important role in a diverse array of contexts. For example, Beth Sundstrom and Cara Delay, in Catching Fire: Women's Health Activism in Ireland and the Global Movement for Reproductive Justice (2023) at 14, cite the case of truth-telling among the victims of enforced sterilizations in Peru which served as ‘a nonviolent method of historical justice that protected victims’ right to
730 L. Bilsky, ‘The Right to Truth in International Criminal Law’, in K. J. Heller et al. (eds.), The Oxford Handbook of International Criminal Law (2020) 473.
the truth as a form of resistance and created the possibility of reparation.’ They argue that gender-sensitive truth-telling goes hand-in-hand with reproductive justice, and give an example of civil society-led truth-telling ‘which emphasized accountability by listening to women’s voices, avoiding reifying or essentializing women’s experiences, and affirming local women’s meaning making.’
a. Argentina
Most accounts of the emergence of truth commissions begin with post-World War II Germany and efforts to supplement denazification with institutional reforms designed to prevent the recurrence of Nazism, to pay reparations to victims, and to recognize and memorialize what happened. Similar efforts were pursued after the fall of the Berlin Wall and the reunification of Germany. But in more recent history, two commissions have assumed iconic status: those in Argentina and South Africa. In Argentina, a major economic crisis and a crushing military defeat in the Falklands/Malvinas war, led to the election of a democratic government headed by President Raúl Alfonsín. He established the National Commission on the Disappearance of Persons (CONADEP), presided over by the famous writer, Ernesto Sabato.731 Its report, Nunca Más (Never Again) was published in 1984:
ERNESTO SABATO, PROLOGUE TO NUNCA MÁS (1984)
… [In Argentina] the armed forces responded to the terrorists’ crimes with a terrorism far worse than the one they were combating, and after 24 March 1976 they could count on the power and impunity of an absolute state, which they misused to abduct, torture and kill thousands of human beings.
Our Commission was set up not to sit in judgment, because that is the task of the constitutionally appointed judges, but to investigate the fate of the people who disappeared during those ill-omened years of our nation’s life. However, after collecting several thousand statements and testimonies, verifying or establishing the existence of hundreds of secret detention centres, and compiling over 50,000 pages of documentation, we are convinced that the recent military dictatorship brought about the greatest and most savage tragedy in the history of Argentina. … Through the technique of disappearance and its consequences, all the ethical principles which the great religions and the noblest philosophies have evolved through centuries of suffering and calamity have been trampled underfoot, barbarously ignored.
… [Human rights were not] violated in a haphazard fashion, but systematically … with identical kidnappings and tortures taking place throughout the country. How can this be viewed as anything but a planned campaign of terror conceived by the military high command? How could all this have been committed by a few depraved individuals acting on their own initiative, when there was an authoritarian military regime, with all the powers and control of information that this implies? How can one speak of individual excesses? The information we collected confirms that this diabolical technology was employed by people who may well have been sadists, but who were carrying out orders. …
The abductions were precisely organized operations, sometimes occurring at the victim’s place of work, sometimes in the street in broad daylight. They involved the open deployment of military personnel, who were given a free hand by the local police stations. When a victim was sought out in his or her home at night, armed units would surround the block and force their way in, terrorizing parents and children, who were often gagged and forced to watch. They would seize the persons they had come for, beat them mercilessly, hood them, then drag them off to their cars or trucks, while the rest of the unit almost invariably ransacked the house or looted everything that could be carried. The victims were then taken to a chamber over whose doorway might well have been inscribed the words Dante read on the gates of Hell: ’Abandon hope, all ye who enter here’,
Thus, in the name of national security, thousands upon thousands of human beings, usually young adults or even adolescents, fell into the sinister, ghostly category of the desaparecidos … .
731 See generally, V. Vegh Weis, ‘Exploring the World’s First Successful Truth Commission: Argentina’s CONADEP and the Role of Victims in TruthSeeking’, 15 J. Hum. Rts. Prac. (2023) 100.
Seized by force against their will, the victims no longer existed as citizens. Who exactly was responsible for their abduction? Why had they been abducted? Where were they? There were no precise answers to these questions: the authorities had no record of them; they were not being held in jail; justice was unaware of their existence. Silence was the only reply to all the habeas corpus writs, an ominous silence that engulfed them. No kidnapper was ever arrested, not a single detention centre was ever located, there was never news of those responsible being punished for any of the crimes. …
A feeling of complete vulnerability spread throughout Argentine society, coupled with the fear that anyone, however innocent, might become a victim of the never-ending witch-hunt. Some people reacted with alarm. Others tended, consciously or unconsciously, to justify the horror. ’There must be some reason for it,’ they would whisper … .
All sectors fell into the net: trade union leaders fighting for better wages; youngsters in student unions, journalists who did not support the regime; psychologists and sociologists simply for belonging to suspicious professions; young pacifists, nuns and priests who had taken the teachings of Christ to shanty areas; the friends of these people, too, and the friends of friends, plus others whose names were given out of motives of personal vengeance, or by the kidnapped under torture. The vast majority of them were innocent not only of any acts of terrorism, but even of belonging to the fighting units of the guerrilla organizations: these latter chose to fight it out, and either died in shootouts or committed suicide before they could be captured. Few of them were alive by the time they were in the hands of the repressive forces.
From the moment of their abduction, the victims lost all rights. Deprived of all communication with the outside world, held in unknown places, subjected to barbaric tortures, kept ignorant of their immediate or ultimate fate, they risked being either thrown into a river or the sea; weighed down with blocks of cement, or burned to ashes.
In the course of our investigations we have been insulted and threatened by the very people who committed these crimes. Far from expressing any repentance, they continue to repeat the old excuses that they were engaged in a dirty war, or that they were saving the country and its Western, Christian values, when in reality they were responsible for dragging these values inside the bloody walls of the dungeons of repression. They accuse us of hindering national reconciliation, of stirring up hatred and resentment, of not allowing the past to be forgotten. This is not the case. We have not acted out of any feeling of vindictiveness or vengeance. All we are asking for is truth and justice … . If this does not happen, then the transcendent mission which the judicial power fulfills in all civilized communities will prove completely valueless. Truth and justice, it should be remembered, will allow the innocent members of the armed forces to live with honour; otherwise they risk being besmirched by an unjust, all embracing condemnation. Truth and justice will permit the armed forces as a whole to see themselves once more as the true descendants of those armies which fought so heroically despite their lack of means to bring freedom to half a continent.
We have been accused, finally, of partiality in denouncing only one side of the bloody events which have shaken our nation in recent years, and of remaining silent about the terrorism which occurred prior to March 1976, or even, in a tortuous way, of presenting an apology for it. On the contrary, our Commission has always repudiated that terror … . Also, Argentinians have had the opportunity of seeing an abundance of television programmes, of reading countless newspaper and magazine articles, as well as a full-length book published by the military government, in which those acts of terrorism were listed, described, and condemned, in minute detail.
Great catastrophes are always instructive. The tragedy which began with the military dictatorship in March 1976, the most terrible our nation has ever suffered, will undoubtedly serve to help us understand that it is only democracy which can save a people from horror on this scale, only democracy which can keep and safeguard the sacred, essential rights of man. Only with democracy will we be certain that NEVER AGAIN will events such as these, which have made Argentina so sadly infamous throughout the world, be repeated in our nation.
RONALD DWORKIN, REPORT FROM HELL NEW YORK REVIEW OF BOOKS (17 JULY 1986)
Two further crucial decisions were necessary … . First, who should be prosecuted? Alfonsín, … [had] ordered the arrest and trial of the military men at the top: the nine commanders who formed the three ruling juntas from 1976 to 1982. But should the government also prosecute the staff and junior officers who supervised the abductions and detention centers and the torture, or the thousands of ordinary soldiers who participated in these crimes? Argentine law provided a defense for military subordinates who were merely following orders. But how should this defense be interpreted? Should it protect soldiers who followed orders that were, in fact, illegitimate? Should it protect those who, following orders, committed obvious atrocities?
Second, in which courts should those who were prosecuted be tried? It was at least arguable that … the law required that military men be tried only in military courts … . It would violate the spirit of due process the government was anxious to reinforce to change that jurisdictional rule retrospectively and try military men in civilian courts. But the military court the Supreme Council of the Armed Forces was unlikely to condemn the military structure as a whole, as it would have to do if it accepted the claims of Nunca Mas.
The government was subject to intense political pressures on both sides of these two issues. The human rights community, and particularly the Mothers of the Plaza, were outraged at the possibility that the army could be left to judge itself, or that those who had actually butchered and tortured their fellow citizens might escape condemnation altogether. But Argentina needed to bury its past as well as to condemn it, and many citizens felt that years of trials would undermine the fresh sense of community Alfonsín’s victory had produced. And any general program of prosecution, reaching far down the command structure, might anger the military and make it regard the new government as its enemy, which would be unwise in a nation where military coups had become almost a ritual.
The new government formally declared its intentions in a comprehensive statute, Law 23.049 of February 14, 1984 …: all prosecutions of the military … were to be tried in the first instance by the Supreme Council of the Armed Forces … . But [its decisions] were subject to automatic review by the civilian Federal Chamber of Appeal, which could consider new evidence if it thought this necessary. …
The law also resolved the issue of criminal responsibility. It provided, in Article 11, that in the absence of any evidence to the contrary, any member of the military who acted “without decision-making capacity” would be presumed justifiably to have regarded all the orders he received as legitimate orders, except that this presumption would not hold if the acts he committed were “atrocious” or “aberrant.” … It was widely understood that abduction, for example, was not atrocious, so that the junior officers who formed the abduction squads would not be guilty under these standards, but that torture, rape, murder, and robbery were atrocities … .
Law 23.049 was attacked by the human rights groups as much too lenient; they saw it as a capitulation to the military for political reasons.
[In the end, the Supreme Council] refused to participate in the trial of the nine commanders, which was transferred to the civilian court … .]
Nunca Más became a bestseller in Argentina and was translated into five other languages, selling over half a million copies. It was also used as a model for other Latin American truth commissions between 1985 and 2003. Emilio Crenzel, in ‘Genesis, Uses, and Significations of the Nunca Más Report in Argentina, 42 Lat. Am. Persp. (2015) 20 notes that Nunca Más:
recognized the disappeared as subjects of law without revealing their political activism, posited the exclusive responsibility of the dictatorship in the disappearances, and upheld democracy as the guarantee for preventing the horror from ever happening again, thus obscuring the responsibility of political and civil society before and after the coup. … [It
thus] publicly challenged with unprecedented strength the dictatorship’s denial of the crime. … [It secured] a massive readership.
… Nunca Más became the template for constructing a new memory of [the] past. It became the dominant way of thinking about, remembering, and representing the past. [But, over time, the human rights community challenged the Alfonsín government] … over who was the rightful interpreter of its contents … . … [A]fter the impunity laws were passed and the pardons were granted … the human rights organizations regarded the Nunca Más report as a means for denouncing the crime of forced disappearance and as a sign of the waning willingness of the state and political leaders to seek justice.
From 1995 on, Nunca Más entered a new cycle of mass dissemination as multiple actors sought ways of conveying the past to younger generations. … [I]t was no longer seen as a means for attaining punitive goals and became a vehicle of memory, opening the way for a debate over possible political and historical interpretations. … These accounts introduced new meanings, some even openly challenging the original report’s view, by presenting state violence as existing prior to the coup, explaining the disappearances as a result of material goals or of political and religious values that the report posited as being violated by this crime, and abandoning the view of democracy as the political regime that guaranteed the “never again” imperative.
Nonetheless, these interventions reproduced some of the interpretative approaches of the report, eluded the historical examination of the past, overlooked any possible connections between political and civil society and the horrors perpetrated, and ignored the political activism of the disappeared. … [Argentine society has had difficulty] in incorporating this past into a historical account that includes politics as a feature of its protagonists and a cause for ruptures. The uses of Nunca Más illustrate the public’s acceptance of the report as a canonical text, while its resignifications evidence that it too was shaped by the political times of collective memory. …
b. South Africa
The establishment of the South African Truth and Reconciliation Commission was part of the negotiated settlement in 1994 to bring an end to apartheid. For various reasons, it captured the public imagination and has been highly influential, although assessments of its contributions vary, as noted by the UN Special Rapporteur in 2017:
… It is the only truth commission to include an amnesty-for-truth model (a highly conditioned amnesty by design). It integrated a promise of reparations (alas, not completely satisfied), and, importantly, provided a public platform for victims, not the least through highly successful public hearings. Ultimately, the expectation that the amnesty process would generate significant information was not met. Similarly, the idea that those whose amnesty applications had been denied would be liable for prosecution (7,112 applications filed but only 849 amnesties granted) has been emptied of force because of the reluctance to initiate prosecutions. Nonetheless, the model has been extraordinarily influential. Kenya, Liberia and Sierra Leone have adopted elements of this approach.732
Other commentators have been even more critical:
… [The TRC] was widely applauded by international scholars and human rights nongovernmental organizations, and it did perform a number of functions admirably. The Commission’s public and televised hearings brought the voices of ordinary Africans into the mainstream public space in a way that was unprecedented in South Africa’s history. After the TRC hearings, it was apparent to all that apartheid was a vicious system of
732 P. de Greiff, Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence on his global study on transitional justice, UN Doc. A/HRC/36/50/Add.1 (7 August 2017), para. 14.
institutionalized racism that destroyed millions of human lives, through violence and through structural neglect.
… [But] the final TRC Report released in 1998 was a shambolic document comprised of 3,500 jumbled, barely edited pages with no coherent chronology and no index. It contained basic and embarrassing mistakes of fact … .
Perhaps more significant was the TRC’s evasion of the larger historical questions about the nature of the apartheid system and its relationship to violence. The TRC report need not have settled these complex issues, but it ought to have broached them, since a central stated rationale for truth commissions is that they can address the historical questions that criminal courts must eschew in their focus on individual criminal responsibility. In the end, the South African TRC did not leave behind a well-constructed report that offered new insights into apartheid-era violence. In fact, the criminal prosecution of apartheid security policemen such as [Colonel] Eugene De Kock arguably produced more new and substantial information on the day-to day functioning, if not the entire chain of command of the apartheid state security apparatus. In this respect, there is a very wide disjuncture between how international scholars and practitioners and South Africans of various political dispositions perceive the Commission’s legacy.
The South African case casts doubt upon the often-stated view that truth commissions inevitably represent a marked improvement upon domestic criminal trials with respect to the histories they write. Instead, some commissions and courts produce meager and impoverished accounts, whereas others write complex and detailed histories of the origins of conflict. …733
c. East Timor and Indonesia
Two very different experiences in this region are recounted by different scholars. The first relates to East Timor:
… After 1999, when the United Nations assumed administration of East Timor following massive violence around the referendum on self-determination, a Serious Crimes Process and a Commission for Reception, Truth and Reconciliation were established. The former was comprised of two hybrid criminal justice mechanisms that focused on perpetrators of the most serious abuses. The Commission complemented this approach by dealing with the aftermath of violence in communities, focusing on mid- or lower-level perpetrators of crimes, through a programme to encourage the “reception” of former militias back home. Another novelty was the joint truth-seeking effort with Indonesia, the Commission on Truth and Friendship. Initially criticized by observers who expected nothing short of a whitewash, that Commission’s final report supported many of the politically sensitive findings of the Commission for Reception, Truth and Reconciliation in East Timor regarding crimes against humanity committed by Indonesian forces.734
The second relates to events in Indonesia:
In October 1965, … [the] Indonesian military, with the assistance of co-opted religious and nationalist youth militias, rounded up members and affiliates of the mass-supported Indonesian Communist Party (PKI). Between October 1965 and March 1966, up to 1 million unarmed civilians were murdered due to their alleged political beliefs, with a further estimated 1.5 million held in political detention camps for years afterward.
733 R. Ashby Wilson and V. Petrović, ‘Transitional Justice Histories: Narrating Mass Atrocities’, in J. Meierhenrich, A. Hinton and L. Douglas (eds.), The Oxford Handbook on Transitional Justice (2023).
734 P. de Greiff, above, para. 21.
[Between 2008 and 2012, Indonesia’s National Human Rights Commission (Komnas HAM) launched an official inquiry into these events. If the Commission was able to provide ‘sufficient preliminary evidence’ that gross violations could reasonably be expected to have occurred, a full investigation and possible prosecutions should then be undertaken by the Attorney-General.]
… [The Commission] report, which provided substantial evidence of numerous crimes against humanity perpetrated by state agents and their proxies in 1965–1966, was a landmark achievement in many ways. It refuted the military’s own version of events, and instead laid the blame squarely on the Indonesian Army leadership for its role in coordinating and carrying out the murders, exterminations, torture, sexual violence, and the many other forms of widespread violence perpetrated systematically against Communists in the aftermath of the October 1, 1965 coup. Nothing has come of the [report] … .735
d. Colombia
Colombia was in a state of civil war between 1958 (or 1964, according to some accounts) and 2016. After a ‘final peace agreement’ in 2016, a Truth Commission began work in 2018. In July 2022 it published an 896-page summary of findings and recommendations, along with the first two chapters of what will eventually be a tenchapter report. It estimated that some 450,000 people were killed, nearly twice the number previously believed. Millions of people were displaced. The report drew on more than 14,000 individual and collective interviews, as well as a cache of previously classified Central Intelligence Agency and other U.S. Government reports which disclosed many forms of involvement by U.S. officials and corporate actors.
On 24 November 2016, the Colombian Government and FARC-EP (Revolutionary Armed Forces of Colombia – Army of the People) signed the ‘Final Agreement to End the Armed Conflict and Build a Stable and Lasting Peace’. Among other things, the agreement created the ‘Holistic System for Truth, Justice, Reparation and NonRecurrence (SIVJR). Juana Acosta-López and Cindy Espitia-Murcia, in ‘The Transitional Justice Model in Colombia vis-à-vis the Inter- American Human Rights System’, in Alejandro Linares-Cantillo et al. (eds.), Constitutionalism: Old Dilemmas, New Insights (2021) 331, explain the role of the three principal organs established by the agreement:
1. The Truth, Coexistence and Non- Recurrence Commission. This is a temporary extra- judicial organ tasked with four main functions, namely: (i) to clarify the human rights and international humanitarian law (‘IHL’) violations and breaches committed in the course of the NIAC [non-international armed conflict]; (ii) to provide the society with ample explanation on the complexity of the Colombian conflict; (iii) to promote the recognition of the victims and the acknowledgement of the individual and collective responsibilities of those who participated in the conflict; (iv) to promote reconciliation and coexistence in the territories as a guarantee of non- recurrence.
2. Special Unit for the Search of Persons deemed as Missing in the Context and due to the Conflict. This is a high- level special unit of a humanitarian and extra- judicial nature, whose goal is to direct, coordinate, and contribute to the implementation of humanitarian actions for the searching and identification of all the people deemed as missing due to the NIAC who are still alive. In the cases of those deceased, whenever possible, the Special Unit should work for the location and dignified delivery of their remains.
3. Special Jurisdiction for Peace. This organ is composed of a number of judicial panels for justice. In its twentyyear term it is tasked with judging those who bear most responsibility for crimes that constitute serious violations of international human rights law and grave breaches of IHL that were committed during the sixtyyear NIAC. … [Its main function] is to secure, by reasonable means within its reach, truth, justice, reparation, and guarantees of non- recurrence for the victims. …
735 J. Melvin and A. Pohlman, ‘Crimes against Humanity in Indonesia (1965–1966)’, in B. Holá et al. (eds.), The Oxford Handbook of Atrocity Crimes (2022) 829.
An excerpt from the recommendations in the Truth Commission’s 2022 report follows. Note that this is an unofficial electronically-generated translation.
COMMISSION FOR THE CLARIFICATION OF TRUTH, COEXISTENCE AND NONREPETITION, THERE IS A FUTURE IF THERE IS TRUTH: FINAL REPORT, FINDINGS AND RECOMMENDATIONS
(2022) 624
Introduction
… The signing of the Peace Agreement … opened a new opportunity to undertake as a society the transformations that are necessary … . However, [today] … we are facing a scenario of increased violence in some areas of the country. …
The … violence and armed confrontation in some territories has resulted in an increase in displacements, confinements, recruitments, landmine incidents and assassinations of social leaders, human rights defenders and people in the process of reincorporation. Added to this is the blockage of dialogues with the ELN and the absence of a security strategy appropriate to the context and focused on the protection of people. Taken together, all of the above implies a risk of reliving a cycle of violence that was thought to have been overcome
…
… [E]ight themes were prioritized … in the recommendations: 1) peace building as a national project, 2) victims, 3) political regime and participation, 4) drug trafficking, 5) impunity, 6) security, 7) territorial peace, 8) culture for peace and education. …
Summary of recommendations
…
• … [P]eace as a long-term priority must become a national project that places respect for life and dignity at the center, that guarantees rights to all equally, that recognizes and respects diversity, a peace that is built from the territory and with the communities, and in which dialogue is the main tool for dealing with differences and resolving conflicts. A peace that allows for reconciliation and the reconstruction of citizens' trust in institutions and among themselves … .
• Recognize the victims of the armed conflict in their pain, dignity and resistance; recognize the injustice of what they have experienced and the collective trauma that we share as a society. This should lead us to commit ourselves to comprehensive and transformative reparations for the more than nine million victims of the internal armed conflict … .
…
• To advance in a critical examination of our past in order to build on it a future in peace. For this reason, we need a policy of memory and truth for the construction of peace and non-repetition that commits the State and society as a whole and contributes to the strengthening of democratic values. Furthermore, it must recognize, support and promote the memory initiatives of civil society and its organizations as essential for the construction of a plural and democratic memory; and ensure that the responsible institutions have the necessary independence and autonomy to carry out a policy and decisive action for a living and plural memory that implies a break with the past of stigmatization, justification or denial.
• Rethink the problem of drug trafficking and find the political, economic, ethical and legal ways out of it in in-depth debates, both at the national and international levels, that will allow progress in the regulation of the drug market and overcome prohibitionism. This is based on the recognition of the penetration of drug trafficking at all levels of culture, politics and economy, and that the war against
drugs and for illegalized drugs is one of the main and most relevant factors that have facilitated the persistence of conflict and violence … . In the immediate term, it is urgent to adopt a human rights and public health approach in the policy against cultivation and consumption and to rationalize the use of criminal action against the weakest links in the chain, which will allow, among other things, overcoming structural problems of poverty, exclusion and stigmatization. And to implement a proposal for the rigorous regulation of the market and consumption under state and international control in a process in which Colombia can and should play an inspirational and leading role.
• Strengthen and develop investigative mechanisms that allow the State and society to know in depth the system of relationships, alliances and interests involved in drug trafficking and networks of violence.
…
• Recover the value of justice to vindicate legality, promote peaceful coexistence, contribute to the satisfaction of victims' rights and rebuild trust in the State. In this sense, given the persistence of violence caused by armed groups and the impact of impunity, it is necessary to improve the State's capacity to guarantee the impartiality and independence of the investigative and judicial entities, as well as the control bodies that must be a guarantee and commitment to the necessary strengthening of democracy … .
• Establish a new vision of security for peace building, as a public good centered on people, that allows us to overcome the logics of the armed conflict in which we have lived, change the way the State understands and is present in the territories and rebuild trust based on dialogues between citizens and institutions, particularly the public force, as a fundamental element for territorial peace and institutional strengthening. In this context, the transformation of the security sector, and in particular the role of the security forces in ensuring the prevention of crime and the requirements of the law in the protection of the lives and tranquility of people, starting with those who are most exposed due to poverty and exclusion, becomes relevant … . Finally, the recovery of trust also implies that the sector's institutions face the legacy of human rights violations and breaches of IHL in which their members have been responsible, and guarantee the non-repetition of these events.
• To deepen democracy for peace through the definitive exclusion of weapons from politics … .
• Building peace requires new tools and a break with the past, a positive shock, and not a fragmented vision of the way forward. … A ministry or an entity that promotes State policies for reconciliation and peace-building is one of the tools that the Commission proposes. …
• To guarantee conditions of well-being and dignified life for the communities in the territories … requires a comprehensive, long-term effort that commits not only the State, but society as a whole, based on a participatory, equitable, sustainable and multicultural land-use planning process. To this end, land redistribution, prevention and reversal of dispossession, access to public goods and services, including security and justice, and productive opportunities (financial capital, tertiary roads, access to markets) must be guaranteed for rural inhabitants, which means food security and sovereignty for the country, care for ecosystems, water and land as fundamental elements for the common good and good national living from the local communities.
• … There cannot be full peace without differential treatment of historically excluded groups - ethnic peoples, peasant population, women, children, adolescents and youth, LGBTIQ+ persons, persons with disabilities or functional diversity, and the elderly- and if specific efforts are not made to transform the factors that caused the armed conflict to have a particularly aggravated impact on them. …
* * *
To the extent that generalizations can be valid across a wide range of truth commissions over many decades, Adam Kochanski, in ‘Mandating Truth: Patterns and Trends in Truth Commission Design’, 21 Hum. Rts. Rev.
(2020) 113, identified three emerging trends based on a review of 44 truth commissions, that operated between 1974 and 2015. The first was a move towards more complex mandates. He notes that while the 1990 Chad TC had the singular goal of documenting the abuses committed under Hissène Habré, the 2008 Kenyan Truth, Justice, and Reconciliation Commission had 18 different goals. He notes, however, that the broader focus ‘has coincided with a turn away from the early expectation that truth commissions will support human rights prosecutions’, but adds that there has been no accompanying ‘move toward robust procedural powers for investigation and reporting’. The second trend is a diminished emphasis on seeking prosecutions, for which he offers two possible explanations. The first is that ‘a functional division of labour has emerged’ between the work of TCs and trials conducted by the courts. The second, and more problematic, explanation ‘is that a logic of reduced costs is motivating TC establishment. In other words, TCs are being selected because they offer a substitute for trials – abusive regimes view them as a less harmful policy option that can deflect calls for accountability.’ He cites bodies set up in Sri Lanka and Côte d’Ivoire as illustrations of initiatives largely designed to defuse or even silence accountability demands.
The third trend identified by Kochanski is a failure to give TCs strong investigative and reporting powers. He suggests that this might be taken as ‘an early indicator of instrumental use given some of the most questionable TCs fall into the range of limited powers (e.g. Algeria, Lebanon, Serbia and Montenegro, Sri Lanka, and so forth).’
4. The Future of Transitional Justice
While the materials above have focused primarily on issues such as amnesties and truth commissions, there are a great many other dimensions to transitional justice, including reparations which are dealt with below (p. 000). In addition, mention should be made of the increasing use of techniques associated with transitional justice to address the violations of rights to which indigenous peoples in many countries have been subjected (see UN Docs. A/76/180 (2021) and A/HRC/51/50 (2022)). Sámi reconciliation commissions have been set up in Norway (2018), Finland (2019) and Sweden (2020), and in 2021, Victoria, the second most populous state in Australia, established the Yoorrook Justice Commission to ‘develop a shared understanding among all Victorians of the impact of colonisation, as well as the diversity, strength and resilience of First Peoples’ cultures; and to make recommendations for healing, system reform and practical changes to laws, policy and education, as well as to matters to be included in future treaties.’736 In a different context, transitional justice approaches have also been used to address sexual and other abuses in religious settings.737
Looking at the field as a whole, David Tolbert and Marcela Prieto Rudolphy, ‘Transitional Justice in the 21st Century: History, Effectiveness, and Challenges’, in Barbora Holá et al. (eds.), The Oxford Handbook of Atrocity Crimes (2022) 581, note the extent to which deep disagreements remain as to its nature and future directions:
There is an air of paradox in the goals associated with transitional justice. There are conflicts between substantive and procedural justice, and between reconciliation and nation-building. There is the challenge of achieving criminal accountability when violations have been committed by thousands of perpetrators and achieving reconciliation while simultaneously “opening up old wounds;” and promoting a transformative agenda that at the same time is meant not to imperil the transition. Although tensions may arise in practice, there is nothing in the goals that makes them incompatible … .
… [T]here is no consensus on any conception of transitional justice. Some think transitional justice is just a form of ordinary justice, while others emphasize the particularities of pre-transitional states. Teitel has focused on the particularities of transitional justice and its relation between law and political transformation, while De Greiff has argued that transitional justice is a “principled application of justice in distinct circumstances.” More recently, Colleen Murphy has provided a theoretical account of transitional justice and its demands, which contests the idea of transitional justice as a mere compromise between different familiar kinds of justice and underlines transitional
736 https://yoorrookjusticecommission.org.au/overview/.
737 J. Gallen, Transitional Justice and the Historical Abuses of Church and State (2023).
justice’s special nature. Others emphasize restorative justice, which aims for reconciliation by seeking to re-establish the relationships between victims and perpetrators and involving the wider community. Initially thought of as applicable only to lesser violations, some now argue it should extend to the most serious crimes. Finally, there is the most recent transitional justice canon, which has been called the “fourth generation of transitional justice scholarship”: transitional justice as transformative justice. …
Thus, there is no consensus on any conception of transitional justice nor on the relationships among transitional justice’s goals. This makes the second question on which there is not much consensus either even more challenging: Does transitional justice deliver on what its advocates promise? …
In the following readings, Dustin Sharp and Frank Haldemann offer important reflections on the ways in which the field should evolve in the years ahead.
DUSTIN SHARP, RETHINKING TRANSITIONAL JUSTICE FOR THE TWENTY-FIRST CENTURY:
BEYOND THE END OF HISTORY
(2018) 155
[In concluding his book, Sharp argues that transitional justice policy in the twenty-first century should be (re)oriented around the following five broad themes:]
Transitional justice should embrace more extended concepts of peace, justice, and violence
“Peace” tends to be conceived of as a narrow (neo)liberal peace. “Justice” is typically understood in terms of legal and atrocity justice for a narrow if not egregious band of civil and political rights violations. And the “violence” that is to be condemned (and, hopefully, prevented) is understood as comprising physical violence, for the most part excluding violence of the economic, cultural, and structural kind. These are all, of course, social and political constructions, and there is a sense in which they are mutually reinforcing. That is, narrow constructions of justice and violence lead to a comparatively thin idea of peace, and vice versa.
… Without doubt, justice in its fullest and most expansive sense must necessarily remain a broader concept than transitional justice. However, to the extent that questions of economic violence and distributive justice help to drive conflict, instability, and human rights abuses, their positioning at the periphery of transitional justice concern may ultimately be self-defeating. Thus, whatever the dividing line between abuses that will be addressed or go unaddressed by transitional justice mechanisms, it makes little sense as a matter of policy to draw a simplistic one that reifies historic dichotomies of civil and political versus economic and social rights.
…
Much will depend on context, but whether issues of economic violence are addressed is a question largely bound up with practical and methodological challenges, not fundamental or structural impossibilities. More cautious approaches might, for example, focus on those patterns of economic violence with the greatest negative impact on economic and social rights, or perhaps focus on a small group of those “bearing the greatest responsibility” for economic crimes. Another filtering device to render the inquiry more manageable might be temporal –limiting the investigation to a period of the last ten years, for example. In this, the embrace of economic violence would be little different than historical approaches to violations of civil and political rights, which have tended to be relatively limited and selective.
The question is therefore increasingly less whether facets of economic violence should be addressed than how they should be addressed in view of available resources and the roots and drivers of the conflict. …
Transitional justice should embrace the idea of “liberal localism”
… Transitional justice has tended to privilege largely Western approaches to and understandings of what it means to “do justice.” This has at frequent intervals sparked resistance and backlash, and diminished a sense of
badly needed legitimacy and local support for many transitional justice initiatives. The sense that transitional justice is in essence a “Western” enterprise pushed, funded, and supported by the Global North is not entirely accurate, but contains an uncomfortable degree of truth that is ultimately corrosive to the very local ownership and support essential to long-term success. Yet the choice going forward is not a simple one between dogmatic localism and strongly assertive if not imperious global justice. Rather, the dilemmas of “the local” reveal competing liberal principles and commitments that need to be balanced. In and of itself, there is nothing particularly illiberal, for example, in giving greater weight to local autonomy, participation, and decision making when it comes to deciding what justice is supposed to mean and what the appropriate mechanisms for delivering that justice should be. If taken seriously, principles of pluralism and concepts like the “margin of appreciation” worked out in historically liberal societies would also go a long way toward generating locally driven transitional justice practice reflective of greater contextual openness and adaptability. … …
Transitional justice should strike a better balance between retributive, restorative, and distributive justice
Considered most expansively, “justice” could be understood as a broad social project and a condition in society. To “do justice” with such a conception in mind would likely involve a wide spectrum of efforts involving components of retributive, restorative, and distributive justice. Yet this holistic view of justice stands in contrast to a narrower human rights legalism often associated with transitional justice that has tended to see justice as a relationship to the state, has tended to see “accountability” for mass atrocities as synonymous with individual criminal accountability rather that a broader collective or institutional model, and which has imagined justice to be something that can, to some extent, be engineered and delivered through legal mechanisms and reforms. If this is the conception of justice animating the field, we can then ask whether “transitional justice” is not just a simple byword for “law,” “legal justice,” or “retributive justice.” Thus, a necessary step in achieving a more holistic view of justice would be to question the bias of many in the field toward topdown retributivism as the “gold standard” response to mass atrocity. This assumption is particularly hardwired into lawyers for whom courtroom justice is often seen as the only form of “hard” or “real” justice that one should accept, with anything else being a second-best or compromise solution. …
Transitional justice should embrace peacebuilding, the emancipatory kind, supported by a broader range of liberalisms
Transitional justice has in several short decades become the “globally dominant lens” through which we now grapple with legacies of violence and mass atrocity. That lens has not been an apolitical, acultural, or nonideological one, being most accurately viewed as a fairly narrow, mostly Western, (neo)liberal prism with all the reductive concepts of peace, justice, and violence that go with it. Seen through these optics, transitional justice is the harbinger and handmaiden of atrocity justice and liberal democracy. … [T]hese liberal optics … have contributed, at least in part, to some of the blind spots and frictions associated with transitional justice initiatives today, helping to push certain questions and modalities of justice into the foreground, while relegating others to the background of transitional justice concern:
Set in the Foreground
Set in the Background
the global, the Western the local, the non-Western “other” the modern, the secular the traditional, the religious the legal the political civil and political rights economic and social rights physical violence economic and structural violence the state, the individual the community, the group formal, institutional, “top-down” change informal, cultural, social, “bottom-up” change
A key question is what happens to the chart above if we come to conceptualize transitional justice not simply as a vector for the promotion of atrocity justice and liberal democracy, but as a broader component of peacebuilding. …
… [E]mbracing a paradigm of emancipatory peacebuilding, buttressed by constructs from critical peacebuilding theory, would serve to support a number of the policy changes advocated above. For example, an embrace of positive peace would help to generate a default policy assumption that one should evaluate the need [to address] both physical and economic violence, and consider the cocktail of retributive, restorative, and distributive most suited to the context. As another example, embracing a vision of peacebuilding informed by concepts of popular peace, the everyday and hybridity would help to generate a default policy assumption that justice initiatives should in most instances begin from the “bottom up,” being planned and driven by local constituencies and cosmovision. …
Transitional justice should embrace a sense of radical humility
…
… Historically, dominant transitional justice practice has been characterized by a sort of overconfidence in its abilities, predicated on the assumption that we know what concepts like “doing justice” and “accountability” actually mean, both in and beyond the West; and that mainstream understandings of such concepts are an unmitigated good for transitional societies and beyond. Dominant practice has also often reflected a lack of humility about the extent to which these concepts can be actualized by outsiders without robust local support.
… And if after deep inquiry more flexible and extended concepts of justice, violence, and peace are indeed to be embraced as a policy matter, they must be accompanied by a sense of “radical humility” that accepts the need for their continued interrogation and contestation. …
FRANK HALDEMANN, TRANSITIONAL JUSTICE FOR FOXES: CONFLICT, PLURALISM AND THE POLITICS OF COMPROMISE (2023) 201
Nine Theses on Transitional Justice …
Isaiah Berlin [made famous the] distinction between the hedgehog and the fox – a metaphor for two radically distinct ways of thinking … . His heart was with foxes, with those eclectic, pluralist thinkers who, unlike hedgehogs, see ‘many things’ rather than ‘one big thing’, and who are sceptical about reducing everything to one single framework or system in terms of which all questions can be solved. [The author seeks to think ‘like a fox’ about transitional justice, and summarizes the findings of his book in nine theses]:
1. It’s time to learn to unlearn the normal model. Our way of thinking about and doing transitional justice has been for too long straitjacketed by … ‘the normal model’ [which] reduces transitional justice to an anti-impunity framework, structured around neatly defined and supposedly complementary legal obligations and rights. It is time to relearn the language of dilemmas, uncertainties, conflicts and failure that the normal model suppresses. … [This requires posing questions such as:] How do transitions come about? What conflicts arise? Which values, and which interests collide? How can conflicts be accommodated, and how can enduring change occur? Which compromises are acceptable, and which are not? What is a credible alternative to the present state of affairs? What new social contract is needed to build a better future? …
2. Rather than wishing value conflict away, the question is how to constructively live with it. The normal model problematically assumes that transitional justice forms a harmonious whole. The reality of transitional justice is far messier, however. The goods usually associated with transitional justice (truth, justice, peace, the rule of law, democracy, etc.) tend to conflict, and often irreconcilably, and when they do, there is no single correct formula for resolving the conflict. Value conflict, then, is structural rather than incidental to the project of transitional justice. …
3. There are no neat solutions, only hard choices. … There is no overarching standard, no neat formula, by which such conflicts can be wholly dissolved or resolved. Nothing can make the tensions entirely disappear. Every choice, however well considered, entails regrettable loss. …
4. We can be realistic without being hopeless. … [We] must engage head-on with the issue of how real change is possible here and now. This … means being wary of both bright-eyed optimism and simplistic moralising. …
5. Context is almost everything. The practice of transitional justice is inescapably context dependent. … [I]t is quintessentially a matter of making delicate judgements about what can be done, or even be tried, in some particular circumstances by concrete agents with limited resources and powers. … Principles and values … do have a central role to play … [but] normative generalising is a rather poor guide to practice. It is no substitute for the work of situated judgement.
6. It’s a winding route along an ever-evolving itinerary … [T]ransitional justice … involves … hard choices about how to allocate scarce resources and settle deep conflicts among competing values and interests. These choices are inherently political. …
7. Compromise always leaves a sour aftertaste, but we can hardly do without it. … [Often] compromise is the only viable alternative to continuing war and oppression, and hence a precondition of the very possibility of transitional justice. Compromise in itself is neither ‘bad’ nor ‘good’, however. It must be asked in each case whether a particular compromise can stand up to critical scrutiny at a particular point in time. …
8. We need to remove our Western blinders. Even as it pays lip service to ‘the local’, the normal model leaves virtually no room for practices and approaches other than those from the West. Decolonising transitional justice would mean engaging with ‘other’ standpoints … . It would call … for a critical dialogue between different practices and forms of knowledge, premised on the belief that no framework can be seen as the answer to transitional justice’s problems. …
9. The task is both impossible and necessary. Any response to radical evil is inescapably incomplete and inadequate. Nothing can ever undo what was done, recover what was lost. The slate cannot be wiped clean. … If ‘something is to be done’, we cannot do without ideals of what a better society should look like. Envisioning a credible alternative to the status quo is the very precondition for doing something. Transitional justice can be hopeful without being shallowly optimistic. It is bound up with the hope that social conditions are improvable through genuine human struggle. …
QUESTIONS
1. What is the significance of the position, expressed by various international human rights bodies, that the right to the truth is: (i) separate from the right to information; and (ii) an individual as well as a collective right?
2. It has been suggested that we are now seeing the fourth generation of approaches to transitional justice, which focuses on bringing transformative justice. Compare the principal characteristics of the approach reflected in Nunca Más in 1984 with that in the Colombian Truth Commission report almost forty years later. Is the latter too wide-ranging? If so, what issues would you have left out?
B. REPARATIONS
Reparations are an integral part of the right to an effective remedy, and of transitional justice. But they are also assuming a broader role in terms of redress for historical injustices, such as slavery and colonialism,738 which are the main focus of the following materials. Before examining those issues, however, it is useful to consider some of the philosophical dimensions of reparations claims. Consider first the analysis of different ethical
738 On ‘the duty to provide reparations to peoples, deprived of their means of subsistence, self-determination and development’, see Separate Opinion of Judge Cançado Trindade in Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019, 156, at 232.
theories of reparations by Eric Posner and Adrian Vermeule, in ‘Reparations for Slavery and Other Historical Injustices’, 103 Colum. L. Rev. (2003) 689:
… A theory of reparations explains why the government should require one group of people to pay another group of people even though the latter group, the victims or their descendants or relations, do not have a prior legal right against the first group. Reparations claims thus involve three relationships: (1) the relationship between the original wrongdoer and the original victim; (2) the relationship between the original wrongdoer and the possible payer of reparations; and (3) the relationship between the original victim and the possible claimant or beneficiary of reparations. The claimant must show that each relationship is of the proper type.
The nature of the relationship depends on two separate moral questions. The first concerns the grounds of the moral obligation that gives rise to the reparations claim. Many reparations schemes are based on a claim that one group of people wrongfully harmed another group of people and therefore owe compensation to the extent of the harm. Others are based on a claim that one group of people was unjustly enriched by another group of people and therefore must make restitution of the benefit obtained. The harm and restitution theories have distinctive implications for the generosity and form of reparations and for the validity of the claims of nonwrongdoers and nonvictims.
The second question concerns the nature of the entity that can bear moral obligations. We consider three positions. Under ethical individualism, only individuals can have moral obligations and rights. Under "soft" ethical individualism, a corporate body can also have moral obligations and rights even arising out of circumstances where the individuals who compose the corporation do not. Thus, an individual who belongs to the corporation could be made to pay on account of a wrongful act committed by the corporation even though the individual was not to blame for the act. Under ethical collectivism, a more loosely defined group such as a nation can have moral obligations and rights. Here, even individuals who, though members of the group, did not voluntarily enter the group or accept the benefits of membership (as in the case of soft ethical individualism) can be made to pay for the wrongful acts of the group. As we will discuss, reparations claims become easier to make as individualistic premises are relaxed, but they also become vaguer and less compelling.
Jeremy Waldron, in ‘Redressing Historic Injustice’, 52 U. Toronto L. J (2002) 135 addresses issues relating to reparations, especially for indigenous peoples. His thesis has been summarized in the following terms:
[Waldron’s] ‘thesis of the supersession of historic injustice’ or the ‘supersession thesis’ … is as follows: If a historical injustice occurs leading to an unjust situation S1 at time T1, morally relevant changes in circumstances can occur between T1 and T2, such that at T2, justice does not require – and may prohibit – returning to the prior situation. So, suppose settlers unjustly seized Indigenous lands in 1840. Just after this, the dispossession remains an ongoing injustice and should be reversed. However, changes in circumstances like population increases and environmental conditions may mean that historical entitlements (judged from a moral perspective) can no longer be justified relative to contemporary needs for lands and resources. The distribution of resources that was unjustly established through the seizure in 1840 may become a just (or not unjust) distribution of resources in 2022. Waldron says that if it is no longer a continuing injustice that Indigenous peoples are deprived of those resources, then the injustice has been ‘superseded’. …739
Now, consider Waldron’s own analysis:
It does not follow from what has been said we should attach no importance to historic injustice of the sort that disfigured the colonial history of countries like New Zealand. The arguments made in Parts IV-VIII are directed at a particular way of thinking about
739 L. Meyer and T. Waligore, ‘Superseding historical injustice? New critical assessments’, 25 Crit. Rev. Int’l. Soc. & Pol. Phil. (2022) 319.
that injustice and a particular way of approaching its remediation. I have criticized the approach that aims, as it were, to wind the tape back to the injustice and try to make the world as though the injustice had never happened: I have argued that the counterfactuals that that involves are impossible to figure out (if not incoherent), and I have argued, too, that such an approach tries to do justice to the wrong entities (viz. modern-day successors to the groups that were important at the time the injustice took place) and to vindicate the wrong rights (rights that obtained by virtue of circumstances quite different from those of the modern world). The reparationist enterprise fails to take proper account of the fact that the people, entities, and circumstances in relation to which justice must now be done have changed radically from the peoples, entities, and circumstances in relation to which violations were historically committed. Some of those changes are a result of the historic injustice. But, as I argued in the early sections of the article, that does not mean they can be ignored or reversed. We must come to terms with each other here and now, irrespective of how were [sic] all got here.
Behind the thesis of supersession lies a determination to focus upon present and prospective costs - the suffering and the deprivation over which we still have some control. The idea is that any conception of justice that is to be made practically relevant for the way we act now must be a scheme that takes into account modern circumstances and their impact on the conditions under which people presently live their lives. Arguments for reparation take as conclusive claims of entitlement oriented towards circumstances that are radically different from those we actually face: claims of entitlement based on the habitation of a territory by a small fraction of its present population, and claims of entitlement based on a determination to ignore the present dispersal of persons and peoples on the face of the earth, simply because the historic mechanisms of such dispersal were savagely implicated in injustice. And yet, here we all are. The present circumstances are the ones that are real: it is in the real world that people starve or are hurt or degraded if the demands of justice in relation to their circumstances are not met. Justice, we say, is a matter of the greatest importance. But the importance to be accorded to it is relative to what may actually happen if justice is not done, not to what might have happened if injustice in the past had been avoided.
I want to end by emphasizing two other points that qualify or clarify my thesis of the supersession of historic injustice. First, what I have said applies only if an honest attempt is being made to arrange things justly for the future. If no such attempt is being made, there is nothing to overwhelm or supersede the enterprise of reparation. My thesis is not intended as a defence of complacency or inactivity, and to the extent that opponents of reparation are complacent about the injustice of the status quo, their resistance is rightly condemned. Repairing historic injustice is, as we have seen, a difficult business, and, as a matter of fact, it is almost always undertaken by people of good will. The only thing that can trump that enterprise is an honest and committed resolve to do justice for the future, a resolve to address present circumstances in a way that respects the claims and needs of everyone.
Second, my thesis is not that such resolve has priority over all rectificatory actions. I claim only that it has priority over reparation that might carry us in a direction contrary to that indicated by a prospective theory of justice. Often, and understandably, claims based on reparation and claims based on forward-looking principles will coincide, for, as we saw in Part III, past injustice is not without its present effects. It is a fact that many of the descendants of those who were defrauded and expropriated live demoralized lives of relative poverty - relative, that is, to the descendants of those who defrauded them. If the relief of poverty and the more equal distribution of resources is the aim of a prospective theory of justice, it is likely that the effect of rectifying past wrongs will carry us some distance in this direction. All the same, it is worth stressing that it is the impulse to justice
now that should lead the way in this process, not the reparation of something whose wrongness is understood primarily in relation to conditions that no longer obtain.740
THOMAS PIKETTY, A BRIEF HISTORY OF EQUALITY (2022) 68
The Question of Reparations
… The case of Haiti was particularly extreme in that the slave population grew very rapidly … . Around 1700, the total population of the island was about 30,000 inhabitants, of which barely half were slaves. … At the end of the 1780s, the colony had more than 470,000 slaves (90 percent of the population), 28,000 Whites (5 percent), and 25,000 métis and free Blacks (5 percent).
… The system was in a phase of accelerated expansion when the French Revolution broke out. In 1789-1790, free Blacks claimed the right to vote and to participate in assemblies. This seemed to them logical, given the resounding proclamations regarding equal rights that were being made in Paris, but they were refused that right. The slave uprising began in August 1791 … . Despite military reinforcements sent from France, the insurgents rapidly gained ground and took control of the plantations, whereupon the planters fled the country. The new commissioners sent from Paris decreed the emancipation of slaves in August 1793, a decision that was extended to all the colonies by the Convention of February 1794 … . There was hardly any time to implement this decision. In 1802, the property owners persuaded Napoleon to reestablish slavery in all the slaveholding islands except Haiti, which declared its independence in 1804, after having once again driven out the French troops sent to take back their property. …
Should the French State Reimburse the Debt Paid by Haiti?
The case of Haiti is emblematic, not only because it was the first abolition of slavery in the modern age after a victorious slave revolt, and the first independence from a European power won by a Black population, but also because this episode ended with a gigantic public debt that undermined Haiti’s development over the following two centuries. Although in 1825 France finally agreed to accept the country’s independence and to put an end to its threats to send troops to invade the island, that was only because Charles X had obtained from the Haitian government a commitment to repay to France a debt of 150 million gold francs to indemnify the slaveholders for the loss of their property. The Port-au-Prince government did not really have a choice, given France’s clear military superiority, the embargo imposed by the French fleet, and the genuine risk that the island would be occupied. This veritable tribute represented more than 300 percent of Haiti’s national income in 1825 – more than three years of production – a huge sum that it was materially impossible to repay in a short time. In this case, the treaty stipulated a rapid payment of the whole amount to [a bank], with the Haitian government being responsible for refinancing itself and paying interest to French private banks in order to spread out the repayment. The Haitian debt was the object of multiple, chaotic negotiations, but it was largely repaid (capital and interest), with an average payment of about 5 percent of the Haitian national income per annum between 1840 and 1915 … . With the support of the French government, the banks finally decided to cede the rest of their receivables to the United States, which occupied Haiti from 1915 to 1934 to reestablish order and safeguard its own financial interests
The 1825 debt, transferred from one creditor to another, was officially extinguished and definitively repaid by the beginning of the 1950s. For more than a century, from 1825 to 1950, the price that France tried to make Haiti pay for its freedom had one main consequence: the island’s development was overdetermined by the question of the indemnity, which was sometimes violently denounced and sometimes accepted with resignation, according to the ebb and flow of endless political cycles.
Suppose the French state finally decides to reimburse the debt paid by Haiti, as the Haitian state has been asking it to do for decades. What should the amount of this reparation be? There is no single answer to this question, and it deserves to be the subject of a democratic debate. But it cannot be evaded. A simple, transparent solution
740 An entire symposium on this thesis was published in 2022. See J. Waldron, ‘Supersession: A reply’, 25 Crit. Rev. Int’l. Soc. & Pol. Phil. (2022) 443.
might consist in setting the amount at 300 percent of the Haitian national income in 2020, or about 30 billion euros [which would represent the equivalent of a little more than 1 percent of France’s current public debt].
[The British approach]
… [T]he law of abolition passed by the British Parliament in 1833 put in place full compensation for property owners. Relatively sophisticated scales were drawn up on the basis of the slaves’ age, gender, and productivity, so that the compensation might be as fair and as exact as possible. In this way, some 20 million pounds sterling, or about 5 percent of the United Kingdom’s national income at the time, was paid to 4,000 slaveholders. Today, if a government decided to devote to such a policy the same proportion of the British national income, it would have to pay approximately 120 billion euros, or about 39 million euros, on average, for each of the 4,000 property owners. … All this was financed by a corresponding increase in the public debt, which was itself repaid by all British taxpayers … .
The history recounted by Piketty was subsequently supplemented by a remarkable in-depth, long-term, archival study undertaken by the New York Times: Catherine Porter et al., ‘The Ransom: The Root of Haiti’s Misery: Reparations to Enslavers’, The New York Times (20 May 2022).741 Some excerpts follow:
Though Haiti’s government made the last payments connected to its former slaveholders in 1888, the debt was far from settled: To finish paying it off, Haiti borrowed from other foreign lenders who, in league with a few self-serving Haitian officials indifferent to their people’s suffering, laid claim to a significant share of the nation’s income for decades to come.
Depleted after decades of paying France, Haiti took out even more loans after that. By 1911, $2.53 out of every $3 Haiti took in from coffee taxes, its most important source of revenue, went to paying debts held by French investors … . That left precious little to run a country, much less build one.
In some years of the United States occupation, which began in 1915, more of Haiti’s budget went to paying the salaries and expenses of the American officials who controlled its finances than to providing health care to the entire nation of around two million people.
Even after the Americans relinquished fiscal control in the late 1940s, Haitian farmers were living on a diet that was “often close to the starvation level” … . As few as one in six children went to school.
During slavery, Haiti brimmed with such wealth that its largest and most important city, Cap-Français, was known as the “Paris of the Antilles,” bursting with bookstores, cafes, gardens, elegant public squares and bubbling fountains. … The harbor, choked with garbage today, was perennially full of ocean-worthy sailing ships.
In 1991, Jean-Bertrand Aristide, a former priest, became Haiti’s first democratically elected President. He was ousted in a military coup seven months later, but was re-elected in 2001. In 2003 he launched a campaign to secure reparations from France and calculated that Haiti was owed $21,685,135,571.48. The New York Times commented that although French diplomats mocked the figure for its size and precision, ‘estimates vetted by economists and historians … [show] his calculations may have been close to the mark – and possibly even modest.’ Bertrand was subsequently compelled to leave the country before the end of his term in office, on the grounds that there was otherwise a risk of civil war. But the French Ambassador to Haiti at that time ‘told The Times … that France and the United States had effectively orchestrated “a coup” against Mr. Aristide by forcing him into exile.’ The newspaper added that:
741 See also L. Obregón, ‘Empire, Racial Capitalism and International Law’, 31 Leiden J. Int’l L. (2018) 597.
Since his departure, none of his successors have pressed the issue. In 2003, the French government dismissed his claim of restitution. Twelve years later, [French President François] Hollande acknowledged that France did indeed owe Haiti a debt – before his staff quickly said it was not a monetary one.
Litigation
Litigation has been important in upholding reparations in some contexts but not others. Antony Anghie, in ‘Rethinking International Law: A TWAIL Retrospective’, 34 Eur. J. Int’l L. (2023) 7, at 87, draws a sharp contrast between the rejection of Global South reparations demands and the enthusiastic enforcement of the ‘Western law of reparations’ (based on notions of state responsibility, p. 000 above), which has required formerly colonized countries to pay vast amounts of compensation for wrongs suffered at their hands by corporate investors. International law has premised both approaches on property rights. In the colonialism context, rights to the property of colonized peoples were quickly transferred to the colonizers. But a very different approach has prevailed in response to the expropriation of investors’ property:
… A law of reparations shaped to compensate corporations is now accepted as logical, coherent, inevitable and, indeed, indispensable to furthering growth and development. This body of law both embodies and extends the neo-liberal vision of the world that is now so dominant. By contrast, efforts to provide reparations for slavery or colonial exploitation are criticized as aberrant and destructive, threatening entire social and economic structures with endless claims and no end in sight. …
The contrast is reflected in a Separate Opinion by Judge Abdulqawi Yusuf, in the International Court of Justice case of Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda): Reparations (9 February 2022), para. 37:
37. In its 2005 Judgment,742 the Court … [recognized] injuries caused not only to the DRC but also to “persons on its territory”[. This] should have found application in the reparations phase through the award of different types of reparations depending on the nature and scope of the injury and on the addressees of the reparation. This is not unfortunately the case. The Judgment seems to be stuck in a time warp as it reflects the State-centred approach to reparation reminiscent of the law of diplomatic protection, while acknowledging gross violations of human rights and humanitarian law the victims of which should be entitled to compensation or other forms of reparation independently of their State. Recent developments in human rights and international humanitarian law have led to a widespread recognition that, with regard to claims arising from an injury suffered by an individual or a community, reparation should accrue to the injured individual or community.
At the national level, very few court cases claiming reparations have so far succeeded. The following British case, based on a tort claim, and benefiting from unusually abundant documentary proof, illustrates both the challenges and the limited opportunities.
NDIKU MUTUA, PAULO NZILI, WAMBUGU NYINGI, JANE MUTHONI MARA & SUSAN NGONDI V. THE FOREIGN AND COMMONWEALTH OFFICE
HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION, [2011] EWHC 1913 (QB) (21 JULY 2011)
[INITIAL HEARING TO DETERMINE THE VIABILITY OF THE CLAIMANTS’ CASE]
MR. JUSTICE MCCOMBE
(A) Introduction
742 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, 257, para. 259
1. This is an action for damages for personal injuries brought by five claimants in respect of alleged torts of assault and battery and negligence, for which it is said the defendant is liable as representing Her Majesty’s government in the United Kingdom. The injuries in respect of which the claims are made are said to have been deliberately inflicted on the claimants while they were in detention in Kenya, in varying periods between 1954 and 1959, by officers and soldiers of the Kenya police force, the Home Guard and/or the Kenya Regiment. The particulars of the injuries alleged to have been inflicted speak of physical mistreatment of the most serious kind, including torture, rape, castration and severe beatings. … [I]f the allegations are true … the treatment of these claimants was utterly appalling.
13. The claim is presented under five heads. … (1) … the former liability of the Colonial Administration in Kenya simply devolved or was transferred, by operation of the common law, upon the UK Government at the time of independence in 1963. … (2) … the UK Government is directly liable to the claimants, as a joint tortfeasor, with the Colonial Administration and the individual perpetrators of the tortious assaults, for having encouraged, procured, acquiesced in, or otherwise having been complicit in, the creation and maintenance of the “system” under which the claimants were mistreated. Such liability is said to arise out of the role of the military/security forces under the command of the British Commander-in- Chief. … (3) … the UK Government is similarly jointly liable, through the former Colonial Office, for the acts complained of, because of its role in the creation of the same system under which detainees were knowingly exposed to ill-treatment. … (4) … the UK Government is liable to the claimants … as the result of an instruction, approval or authorisation of particular treatment of claimants given on 16 July 1957. … (5) … the UK Government is liable in negligence for breach of a common law duty of care in failing to put a stop to what it knew was the systemic use of torture and other violence upon detainees in the camps when it had a clear ability to do so.
148. At this stage of the proceedings it seems to me that there is a substantial body of evidence suggesting that both governments well knew that those in charge of the camps and/or those under their command were “not fit and proper persons” to be given custody of prisoners. … At trial the evidence may point the other way, but such a conclusion cannot be ruled out at present.
…
[The court considered the government’s claim that a duty of care should not be imposed ‘in areas where public policy issues, in the sense of political judgments, arise’ (para. 151), but concluded that this was an exceptional case and ‘of such a nature that judicial policy might positively demand the existence of a duty of care’ (para. 153).
154. In my judgment, it may well be thought strange, or perhaps even “dishonourable”, that a legal system which will not in any circumstances admit into its proceedings evidence obtained by torture should yet refuse to entertain a claim against the Government in its own jurisdiction for that government’s allegedly negligent failure to prevent torture which it had the means to prevent, on the basis of a supposed absence of a duty of care. …
[The court concluded that the claims, as amended, could go forward.]
HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION,
[2012] EWHC 2678 (QB) (5 OCTOBER 2012)
[HEARING ON WHETHER THE CASE WAS BARRED BY THE LIMITATION ACT]
MR JUSTICE MCCOMBE
1. [In the preceding judgment] I directed that the case be set down “for hearing of limitation as a preliminary issue”. The pleaded issues on limitation are as follows.
2. … [T]he defendant pleads that each claim by the claimants is barred by virtue of the expiry of the three year time limit provided for under section 11(4) of the Limitation Act 1980 … . [In response] the claimants state …:
“(i) … [I]t is admitted that the action is outwith the time limit provided by s.11 of [the 1980 Act];
(ii) Notwithstanding the passage of time a fair trial remains possible and there are compelling reasons why the Court should exercise its discretion under s.33 and permit the claims to proceed”.
6. [Section 33(1) of the Act provides that ‘If it appears to the court that it would be equitable to allow an action to proceed’, it may exercise its discretion to do so, having regard to:]
(a) the length of, and the reasons for, the delay on the part of the plaintiff;
(c) the conduct of the defendant after the cause of action arose, …;
(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps, if any taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”
(D) The factual issues arising
28. … [I]t seems to me that the following factual issues would arise at trial …:
i) When were the injuries inflicted on each claimant and where did the relevant ill-treatment occur? What was the official status of the perpetrators? Were they soldiers, African home guards, prison officers or other officials? What was the legal status of those individual perpetrators, vis-a-vis the Colonial Government, the British Army (and its Commanders-in-Chief) and the Colonial Office in London respectively and does that status matter?
…
iii) Did General Erskine [Commander in Chief, East Africa Command] (and each of his successors) have full command and the means of control over the entire “security forces” in Kenya? …
iv) Did the British Army commanders have either de jure or de facto control of officials and others serving in the detention facilities and villages …;
v) What role did the War Council in Kenya/the British Army play in the “screening”, interrogation and detention system?
vi) Was there a system of torture and/or other ill-treatment of detainees …;
vii) … what was the true nature of the relationship between the Colonial Office in London and the Colonial Administration in Nairobi? …
ix) What (if anything) did the Colonial Office know about abuses to detainees occurring in detention facilities and elsewhere and when did it have such knowledge?
x) Was there any cover up of any such abuses and, if so, by whom? …
…
xii) Causation and Quantum of damages
29. In respect of all these matters, the claimants contend that a fair trial is possible on the basis of the substantial documentary base that survives and the oral evidence of surviving witnesses in Kenya and the UK. The defendant says, “No, a fair trial is not possible” … .
(E) Background facts relating to the Section 33 factors
31. Each of the surviving claimants is now elderly. Mr Nyingi is aged 84, Mr Nzili is 85 and Mrs Mara is about 73. Mrs Ngondi was 71 when she died. They each come from remote rural areas of Kenya and have worked in elementary farming communities. They have little education, even in their own languages; none has any significant knowledge or understanding of English. They have no experience, prior to this matter, of legal or other professional advice. They have minimal financial means. The possibility of any legal claim arising out of their now admitted ill-treatment was only brought to their attention by the Kenya Human Rights Commission (“KHRC”) in [2006 and 2008]. …
32. As a matter of historical scholarship, two new works about the Kenya Emergency were published in 2005. Those works were Imperial Reckoning: the Untold Story of Britain’s Gulag in Kenya by Professor Caroline Elkins of Harvard University and Histories of the Hanged: Britain’s Dirty War in Kenya and the End of Empire by Professor David Anderson of Oxford University. Both these works, based on extensive research both in Kenya and the UK, reached the conclusion that there was regular and systematic abuse of detainees in screening centres and detention camps. … Published historical work on these subjects prior to 2005 had been much more limited and the documentary basis of the present claims had not been unearthed. …
…
(F) The two main rival contentions: Documents and Witnesses
…
[In the earlier phase of the case, it was recounted that the UK Government had been unable to locate 300 boxes of documents relating to the Emergency, that had been removed from Kenya before independence in 1963. But as the trial was underway, those in charge of government records at a facility called Hanslope Park announced that the boxes had been found.]
48. … In the intervening 12 months a great deal of further work has been conducted on that collection by both sides. The historians robustly maintain … that the new disclosure has only served to confirm the impressions and conclusions that they had expressed … .
51. At a trial the court would have to conduct its own analysis of the documents … . However, on the present evidence, … [I conclude] that the available documentary base is very substantial indeed and capable of giving a very full picture … .
109. Looking at those claimants’ evidence, I think that it will be quite possible to determine sufficiently clearly where and when they suffered their injuries and the official status of those responsible for inflicting them. It will also be possible, on the documents arranged and collated chronologically, together with the other evidence, to determine whether or not the injuries occurred because of a breach of duty on the part of the United Kingdom government.
[The court noted that although not necessary to the conclusion of the case, it would consider the argument that in cases involving torture and statute of limitations issues, ‘the Court may be assisted by considering the approach of international tribunals when adjudicating on claims arising out of torture’ (para. 155). The claim was that ‘By logical extension [from criminal cases,] the disapproval of time bars for torture cases extends to civil actions’. The Court found, however, that customary international law did not support the existence of such a rule in relation to civil, as opposed to criminal, cases (para. 157). In concluding the judgment, the Court upheld the request that it should exercise its discretion under the Act to allow the case to proceed.]
WILLIAM HAGUE (SECRETARY OF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRS), MAU MAU CLAIMS (SETTLEMENT)
UNITED KINGDOM PARLIAMENTARY DEBATES, HOUSE OF COMMONS (6 JUNE 2013) COL. 1692
[An emergency was declared between 1952 and 1963 as a result of the armed struggle between the Kenya Land and Freedom Army (known as the Mau Mau), and the British authorities. Widespread violence was committed by both sides, and most of the victims were Kenyan. Many thousands of Mau Mau members were killed, while the Mau Mau themselves were responsible for the deaths of over 2,000 people, including 200 casualties among the British regiments and police. [British statistics estimated that 11,000 Mau Mau were killed, Anderson’s estimate is 25,000 and Elkins’ estimate has been many times that number.]
Emergency regulations were introduced; political organisations were banned; prohibited areas were created; and provisions for detention without trial were enacted. The colonial authorities made unprecedented use of capital punishment and sanctioned harsh prison, so-called “rehabilitation”, regimes. Many of those detained were never tried, and the links of many with the Mau Mau were never proven. …
We recognise that British personnel were called upon to serve in difficult and dangerous circumstances. Many members of the colonial service contributed to establishing the institutions that underpin Kenya today, and we acknowledge their contribution. However, I would like to make it clear now and for the first time on behalf of Her Majesty’s Government that we understand the pain and grievance felt by those who were involved in the events of the emergency in Kenya. The British Government recognise that Kenyans were subject to torture and other forms of ill treatment at the hands of the colonial administration. The British Government sincerely regret that these abuses took place and that they marred Kenya’s progress towards independence. Torture and ill treatment are abhorrent violations of human dignity, which we unreservedly condemn.
In 2012 [the High Court ruled that the cases excerpted above could proceed.] The Court of Appeal was due to hear our appeal against that decision last month. However, I can announce today that the Government have now reached an agreement with Leigh Day, the solicitors acting on behalf of the claimants, in full and final settlement of their clients’ claims.
The agreement includes payment of a settlement sum in respect of 5,228 claimants, as well as [costs] of £19.9 million. The Government will also support the construction of a memorial in Nairobi to the victims of torture and ill-treatment during the colonial era. …
This settlement provides recognition of the suffering and injustice that took place in Kenya. …
We continue to deny liability on behalf of the Government and British taxpayers today for the actions of the colonial administration in respect of the claims, and indeed the courts have made no finding of liability against the Government in this case. We do not believe that claims relating to events that occurred overseas outside direct British jurisdiction more than 50 years ago can be resolved satisfactorily through the courts without the testimony of key witnesses, which is no longer available. …
… [W]e do not believe that this settlement establishes a precedent in relation to any other former British colonial administration.
… We do not want our current and future relations with Kenya to be overshadowed by the past. Today, we are bound together by commercial, security and personal links … . Bilateral trade between the UK and Kenya amounts to £1 billion each year, and around 200,000 Britons visit Kenya annually.
…
Much has been written about this case.743 But the key question is why other cases have not followed on the same path. Caroline Elkins, in ‘History on Trial: Mau Mau Reparations and the High Court of Justice’, in Time for Reparations, above, at 117, suggests three reasons: (i) cases cannot be filed in British courts for abuses that occurred before 1948; (ii) claimants in such cases must be alive and able to appear in court; and (iii) equally damning historical records have not yet become available in relation to other situations.
On 31 May 2021, six UN Special Procedures mandate-holders (those dealing with transitional justice, right to housing, rights of indigenous peoples, rights of internally displaced persons, racism, and torture) sent a ‘communication’ to the UK Government (UN Doc. AL GBR 5/2021) alleging that:
During the pre-colonial and colonial period in Kenya, the Kipsigis and Talai indigenous peoples of Kericho County, as was the case with other communities and indigenous peoples in Kenya, were subjected to gross violations of human rights, such as unlawful killing, sexual violence, torture, inhuman and degrading treatment, arbitrary detention, arbitrary displacement and violations of the rights to privacy, family life and property. The violations also included the expropriation of extensive land belonging to the Kipsigis and Talai peoples of Kericho County, which was considered to be particularly fertile and suited to agriculture. Over 500.000 persons belonging to the Kipsigis and Talai peoples are estimated to have been affected by these events.
The letter notes however that the Government has already indicated that it had ‘no intention to enter any process’ to resolve these claims. Unfortunately, the communication contains no legal analysis engaging with the facts or with precedents, but simply an annex entitled ‘Reference to international human rights law’ which lists a large array of standards and reports of general relevance.
International Initiatives
From time to time, various groups have sought to underscore the importance of the reparations issue. The ‘Abuja Proclamation’, adopted by the First Pan-African Conference on Reparations held in Abuja, Nigeria, on 27-29 April 1993:
Calls upon the international community to recognize that there is a unique and unprecedented moral debt owed to the African peoples which has yet to be paid - the debt of compensation to the Africans as the most humiliated and exploited people of the last four centuries of modern history.
Further urges the OAU [the Organization of African Unity] to call for full monetary payment of repayments through capital transfer and debt cancellation.
Convinced that the claim for reparations is well grounded in International Law.
Urges on the OAU to establish a legal Committee on the issue of Reparations. …
In Resolution 543 (LXXIII) of 12 December 2022, the African Commission on Human and People’s Rights called upon African Union states to ‘establish a committee to consult, seek the truth, and conceptualise reparations from Africa’s perspective, describe the harm occasioned by the tragedies of the past, establish a case for reparations (or Africa’s claim), and pursue justice for the trade and trafficking in enslaved Africans, colonialism and colonial crimes, and racial segregation and contribute to non-recurrence and reconciliation of the past’.
In the UN context, the 2001 Durban Conference was an important watershed:
743 M. Parry, ‘Uncovering the brutal truth about the British empire’, The Guardian, 18 August 2016; and J. Balint, ‘The “Mau Mau” Legal Hearings and Recognizing the Crimes of the British Colonial State: A Limited Constitutive Moment’, 3 Crit. Analysis of L. (2016) 261.
… [T]he slave-trading nations … have expressed their abject regret for historical wrongs committed, [but] they have insisted on separating issues of responsibility from reparations and rejected the imposition of ex post facto liability. Although [pre-conference] expert reports endorsed reparations, the 2001 World Conference Against Racism only “acknowledge[d] that slavery and the slave trade are a crime against humanity and should always have been so, especially the transatlantic slave trade” [UN Doc. A/CONF.189/12 (2001), para. 13]. This formulation has consistently been interpreted to mean that slavery was not in fact such a crime at the time it happened. Instead, the Conference recognized a “moral obligation . . . to halt and reverse the lasting consequences of those practices” and invited governments “to honour the memory of the victims of these tragedies.”744
In 2021, the UN High Commissioner for Human Rights (UN Doc. A/HRC/47/53 (2021)) reported that:
62. Existing initiatives indicate that there is an increasing willingness and emerging practice to acknowledge the need to repair the continuing impacts of enslavement, the transatlantic trade in enslaved Africans and colonialism. Building on these initiatives, States should initiate comprehensive processes to halt, reverse and repair the lasting consequences and ongoing manifestations of these legacies in their specific national context. These processes should be designed to seek the truth, define the harm, pursue justice and reparations and contribute to non-recurrence and reconciliation.
…
64. Measures taken to address the past should seek to transform the future. Structures and systems that were designed and shaped by enslavement, colonialism and successive racially discriminatory policies and systems must be transformed. Reparations should not only be equated with financial compensation.745
The most elaborated international proposal to date is from Caribbean Commission:746
CARICOM, TEN POINT PLAN FOR REPARATORY JUSTICE (2014)
In 2013 Caribbean Heads of Governments established the Caricom Reparations Commission (CRC) with a mandate to prepare the case for reparatory justice for the region’s indigenous and African descendant communities who are the victims of Crimes against Humanity (CAH) in the forms of genocide, slavery, slave trading, and racial apartheid. ….
THE CRC ASSERTS THAT EUROPEAN GOVERNMENTS:
Were owners and traders of enslaved Africans instructed genocidal actions upon indigenous communities
Created the legal, financial and fiscal policies necessary for the enslavement of Africans
Defined and enforced African enslavement and native genocide as in their ‘national interests’
Refused compensation to the enslaved with the ending of their enslavement
Compensated slave owners at emancipation for the loss of legal property rights in enslaved Africans
744 P. Alston, ‘Does the Past Matter? On the Origins of Human Rights”, 126 Harv. L. Rev. (2013) 2043, at 2050. For a refutation of the argument that slavery ‘was legal at the time’, see E. T. Achiume, below; and K. Schwarz, Reparations for Slavery in International Law (2022).
745 See also, Report of the Secretary-General on reparatory justice for people of African descent, UN Doc. A/78/317 (2023))
746 See R. Biholar, ‘Reparations for Chattel Slavery: A Call from the “Periphery” to Decolonise International (Human Rights) Law’, 40 Nordic J. Hum. Rts. (2022) 64.
Imposed a further one hundred years of racial apartheid upon the emancipated
Imposed for another one hundred years policies designed to perpetuate suffering upon the emancipated and survivors of genocide
And have refused to acknowledge such crimes or to compensate victims and their descendants
Caricom Ten Point Action Plan
1. Full Formal Apology
The descendants of the indigenous peoples subjected to genocide, the loss of several cultures, and the erasure of numerous languages require a full and formal apology. …
A full apology accepts responsibility, commits to non-repetition, and pledges to repair the harm caused. Governments from countries responsible for the destruction have refused to offer apologies and have instead issued Statements of Regret. These statements do not acknowledge that crimes have been committed and continue to represent a refusal to take responsibility.
2. Indigenous Peoples Development Programmes
As a result of European conquest and colonisation, the indigenous peoples within the Member States of CARICOM have been subjected to forced migration within countries and across the region; to brutal work conditions, and genocide. Indigenous peoples were brutalized and killed as a result of official instructions to the European military commanders who came to the region. Those who were not immediately killed had their ancestral lands seized and a community of 3 million people in 1700 was decimated to less than 30 thousand in 2000. This also led to the destruction of their languages and unique cultural heritage. Their descendants remain traumatized, landless, and are one of the most marginalized groups in the region as a result of the deliberate and racist discrimination on the part of the European colonizers.
Despite the efforts of the newly developing CARICOM Member States which have inherited the situation, the rebuilding of these communities cannot be done without responsible European States taking on the responsibility of correcting the damage and where possible, restoring the communities that still exist.
3. Funding for Repatriation to Africa
The descendants of African peoples stolen from their homes, lands, people, and cultures have a legal right of return; … . It is the responsibility of those States that are responsible for the forced movement and enslavement of their ancestors to establish a resettlement programme for those who wish to return. …
4. The Establishment of Cultural Institutions and the Return of Cultural Heritage
The restoration of historical memory through community institutions such as museums and research centres will allow citizens to understand these crimes against humanity as well as other colonial harm and to memorialize their ancestors’ contributions … .
5. Assistance in Remedying the Public Health Crisis
6. Education Programmes
7. The Enhancement of Historical and Cultural Knowledge Exchanges
8. Psychological Rehabilitation as a Result of the Transmission of Trauma
9. The Right to Development through the Use of Technology
For 400 years the trade and production policies of Europe could be summed up in the British slogan: “not a nail is to be made in the colonies”. This was a deliberate decision to retard the technology available for development within CARICOM Member States.
10. Debt Cancellation and Monetary Compensation
CARICOM governments that emerged from slavery and colonialism have inherited the massive crisis of community poverty and an inability to deal with the development of their countries because of the burdens of the legacy of colonialism.
… Since correcting the burden of colonialism has fallen on these new States, they are unable to deal with the challenges of development without taking on onerous levels of debt. This debt cycle properly belongs to the governments from the responsible European countries who have made no sustained attempt to deal with debilitating colonial legacies.
Support for the payment of domestic debt, the cancellation of international debt, and direct monetary payments where appropriate, are necessary reparatory actions to correct the harm caused by colonialism.
In contrast, consider the following perspectives on proposals for international reparations:
Niall Ferguson, Empire: The Rise and Demise of the British World Order and the Lessons for Global Power (2004), xx:
[In responding to the question ‘[w]as the British Empire a good or bad thing’, Ferguson acknowledges that its ‘involvement in the Atlantic slave trade and slavery itself … is no longer a question for historical judgement alone; it has become a political, and potentially a legal, issue.’]
… [F]or much … of its history, the British Empire acted as an agency for imposing free markets, the rule of law, investor protection and relatively incorrupt government on roughly a quarter of the world. [It encouraged the] ‘imperialism of free trade’. Prima facie, therefore, there seems a plausible case that the Empire enhanced global welfare – in other words, was a Good Thing.
Many charges can of course be levelled against the British Empire … . I do not claim, as John Stuart Mill did, that British rule in India was ‘not only the purest in intention but one of the most beneficent in act ever known to mankind’; nor, as Lord Curzon did, that ‘the British Empire is under Providence the greatest instrument for good that the world has seen’ … . The Empire was never so altruistic. In the eighteenth century the British were indeed as zealous in the acquisition and exploitation of slaves as they were subsequently zealous in trying to stamp slavery out … .
Yet the fact remains that no organization in history has done more to promote the free movement of goods, capital and labour than the British Empire … . And no organization has done more to impose Western norms of law, order and governance around the world.
Nigel Biggar, Between Kin and Cosmopolis: An Ethic of the Nation (2014), 90:
One obvious apparent problem with empire is that it comprises the imposition of rule by one people upon another, and so involves oppression and exploitation. The imposition of rule, however, is not inherently unjust: all government involves the threat and exercise of coercion against the unwilling … . Nor is the oppression and exploitation of one group by another peculiar to empires: it happens within nation-states, too … . Sometimes the imposition of imperial rule can have the salutary effect of imposing a unifying, pacific, and law-abiding order on peoples otherwise inclined to war among themselves. The order
that an empire brings should not be instantly dismissed as intolerably unjust. It might be. On the other hand, sometimes a measure of injustice should be tolerated for the sake of a decent measure of peace, without which nothing at all can flourish. …
Albie Sachs, ‘Foreword’, in Jacqueline Bhabha, Margareta Matache and Caroline Elkins (eds.), Time for Reparations: A Global Perspective (2021) xi:
In the course of this process of humanizing international law, it would, in my view, be important not to limit the theme of reparations to seeking monetary compensation. …
…[I]n a libel case in which I sat as a justice of the Constitutional Court in South Africa, a colleague and I strongly criticized the use of money awards as the main mechanism for salvaging the dignity and honor of the traduced person. Our contention, later adopted by the court as a whole, was that apology and suitable restorative justice amends would be far more meaningful than payment of a lump sum that would still leave the parties as enemies.
Money can often be quite the wrong moral currency, the wrong register. It abstracts pain from the human heart and puts it in the marketplace. … [R]estorative justice can be far more enduring, far more meaningful than punitive or compensatory justice, though it can contain elements both of punishment and material recompense. …
E. Tendayi Achiume, ‘The Postcolonial Case for Rethinking Borders’, in Dissent, Summer 2019:
… [I]nternational legal scholars such as Antony Anghie have unpacked the complex ways in which international legal doctrine, and international financial and economic institutions, advance First World nations’ interests at the expense of those of the Third World, while stymieing equality-enhancing or reparatory reform. The structural subordination of the Third World as a whole to the First World as a whole should negate the right of any First World country to exclude any Third World person [seeking to enter the First World country], whether or not that specific country colonized the country of nationality of that specific person. The benefits to the First World of neocolonial subordination and its ethical implications go far beyond discrete bilateral relations between former colonial powers and the nations they colonized.
Olúfẹmi O. Táíwò, Reconsidering Reparations (2022):
[This statement of the author’s analysis is taken from his post on the LPE Project blog (21 February 2023), at https://lpeproject.org/blog/reconsidering-reparations/].
… [M]y recent book Reconsidering Reparations argues for two things. First, reparations for trans-Atlantic slavery and colonialism should be seen as a future-oriented project engaged in building a just social order. Second, if we accept that view, then reparations and the struggle for racial justice should be directly linked to the struggle for climate justice.
[The author advocates a] “constructive view” [that] aims to rebuild our social environment itself in the direction of justice: redistributing resources and social advantages to create a just world. …
Other ways of thinking about reparations focus on retributive or reconciliatory justice. …
Both of these approaches get much right about the moral dimensions of reparations and the history of injustice that makes reparations relevant and important. But focusing repairs on the wealth of particular marginalized groups or the moral relationships between particular groups of marginalized people risks overlooking the rigid aspects of
our political and economic systems that impoverished and alienated the groups in the first place. Moreover, these approaches are often used to defend one-off, reversible policy actions: the cash transfer, scholarship program, apology, or memorial. The constructive view accepts the importance of redistributing wealth and resources, as well as rebuilding cultural and interpersonal esteem, and supports many of these policies. But it comes with a further requirement: to root these interventions in a political context that will safeguard rather than erode the gains they make towards justice.
Climate crisis arises out of the same history as the global racial empire. … Given this, we can expect climate change to redistribute social advantages in a way that compounds and locks in the distributional injustices that we have inherited. Left unchecked, the climate crisis threatens to destabilize and overwhelm the past victories won for the cause of racial justice and whatever additional ones we are able to eke out in the near future.
In the face of these links, what should be done? … Bread-and-butter reparations demands, like direct transfers of money to individuals and families or reconciliation processes, must retain their central importance. But we can link the important need for cash and memorials to other important structural concerns, from addressing the destructive role of prisons and pollutants to building food, water, housing, and energy systems that are managed for and by people rather than for profit. Like the fight against the climate crisis itself, these needed interventions will be won or lost on a planetary scale.
Reparations in the United States747
While reparations for slavery in the United States are currently the focus of a great many initiatives, including commissions established by the states of California, Illinois and New York, and the city of San Francisco, they are also deeply rooted in the history of struggles against slavery, as illustrated by an example from the late eighteenth century. In 1775, after the defeat of the British in Lexington and Concord, the largest slave owner in Massachusetts fled to England. His property was confiscated by the state in 1778 and his remaining slaves freed. One of them, Belinda Sutton (aka Royall), petitioned the General Court (the state legislature) on 14 February 1783:748
The Petition of Belinda an Affrican, humbly shews:
… [B]efore she had Twelve years … when she, in a sacred grove, with each hand in that of a tender Parent, was paying her devotions to the great Orisa who made all things – an armed band of white men, driving many of her Countrymen in Chains, ran into the hallowed shade! … She was ravished from the bosom of her Country, from the arms of her friends – while the advanced age of her Parents, rendering them unfit for servitude, cruelly separated her from them forever!
Scenes which her imagination had never conceived of – a floating World … three hundred Affricans in chains, suffering the most excruciating torments; and some of them rejoicing, that the pangs of death came like a balm to their wounds. …
Fifty years her faithful hands have been compelled to ignoble servitude for the benefit of an Isaac Royall, until … the present war was Commenced – The terror of men armed in the Cause of freedom, compelled her master to fly … .
747 See generally: V. Ladisch and A. M. Roccatello, ‘The Color of Justice: Transitional Justice and the Legacy of Slavery and Racism in the United States (ICTJ Briefing)’, International Center for Transitional Justice (26 April 2021); A. Nurse, Reparations and Anti-Black Racism: A Criminological Exploration of the Harms of Slavery and Racialized Injustice (2022); and W. Darity and A. Mullen, From Here to Equality: Reparations for Black Americans in the Twenty-first Century (2020).
748 Transcription published by Royall House and Slave Quarters, at https://royallhouse.org/belinda-suttons-1783-petition-full-text/
The face of your Petitioner, is now marked with the furrows of time, and her frame feebly bending under the oppression of years, while she, by the Laws of the Land, is denied the enjoyment of one morsel of that immense wealth, apart whereof hath been accumilated by her own industry, and the whole augmented by her servitude.
WHEREFORE, casting herself at the feet of your honours, as to a body of men, formed for the extirpation of vassalage, for the reward of Virtue, and the just return of honest industry – she prays, that such allowance may be made her out of the estate of Colonel Royall, as will prevent her and her more infirm daughter from misery in the greatest extreme, and scatter comfort over the short and downward path of their Lives – and she will ever Pray.
Belinda Royall was granted a pension of 15 pounds and 12 shillings, to be paid out of the estate of Isaac Royall. But no precedent was set and the debate continues to unfold in the third decade of the twenty-first century. An important impetus was given to the debate by Ta-Nehisi Coates, in ‘The Case for Reparations’, The Atlantic (15 June 2014). He argued that even after the Civil War, Black people:
… were terrorized. In the Deep South, a second slavery ruled. In the North, legislatures, mayors, civic associations, banks, and citizens all colluded to pin black people into ghettos, where they were overcrowded, overcharged, and undereducated. Businesses discriminated against them, awarding them the worst jobs and the worst wages. Police brutalized them in the streets. And the notion that black lives, black bodies, and black wealth were rightful targets remained deeply rooted in the broader society. …
… [W]hite supremacy is not merely the work of hotheaded demagogues, or a matter of false consciousness, but a force so fundamental to America that it is difficult to imagine the country without it.
In Coates’s view, the resulting wealth gap provided the strongest illustration of the fact that Black people had been treated ‘as sub-citizens, sub-Americans, and sub-humans’ and it led him to advocate reparations as a way of closing the resulting ‘chasm’, as ‘the price we must pay to see ourselves squarely.’
Coates’ article drew many critical responses. Consider the following examples. Kevin D. Williamson, wrote in ‘The Case against Reparations: A reply to Ta-Nehisi Coates’, National Review (24 May 2014):
… Even if we accept the facts of aggregate advantage and disadvantage with their roots in historical injustice, the aggregate cannot be converted into the collective inasmuch as neither advantage nor disadvantage is universal on either side nor linked to a straightforward chain of causality. Some blacks are born into college-educated, well-off households, and some whites are born to heroin-addicted single mothers, and even the totality of racial crimes throughout American history does not mean that one of these things matters and one does not.
Once that fact is acknowledged, then the case for reparations is only moral primitivism: My interests are inextricably linked to my own kin group and directly rivalrous with yours, i.e., the very racism that this program is in theory intended to redress. Mr. Coates also, I think, miscalculates what the real-world effects of converting our liberal conception of justice into a system of racial appropriation might mean. There are still, after all, an awful lot of white people, and though many of them might be inclined to make amends under some sort of racial truce following the process Mr. Coates imagines, many of them might simply be inclined to prevail. … [A] system of exclusive interests in which black and white operate effectively in opposition … is not only morally repugnant, but likely to undermine the genuine political and economic interests of African Americans. …
David Frum, ‘The Impossibility of Reparations’, The Atlantic (3 June 2014):
The United States government launched its reparations program to African Americans in autumn of 1969. Originally known as “the Philadelphia plan,” the program set quotas for black employment in construction trades. Over the next decades, such quotas would spread from industry to industry, and would expand into higher education and public contracting.
The affirmative action experience since 1969 offers some insights into what is likely to happen next: (1) The program will expand to additional groups. (2) The question of who qualifies will become ever more contested and embittered. (3) Side effects will be large and unexpected. (4) The program will work severe inequities. (5) The legitimacy of the project will rapidly fade.
Affirmative action ranks among the least popular things that U.S. governments do. When surveyed, white Americans crushingly reject race preferences, Hispanic Americans object by a margin of 2 to 1, and black Americans are almost evenly divided, with only the slightest plurality in favor.
Now imagine how Americans will feel when what is redistributed by racial calculus is not university admissions or workplace promotions but actual, foldable cash. …
The most directly relevant litigation on these issues declined to consider claims lodged against leading countries that were alleged to have unjustly profited from slavery:
IN RE AFRICAN-AMERICAN SLAVE DESCENDANTS LITIGATION
307 F. SUPP. 2D 977 (N.D. ILL. 2004)
CHARLES NORGLE, DISTRICT JUDGE
Beginning in 2002, a number of lawsuits were filed by descendants of slaves seeking reparations from private corporations, which were alleged to have unjustly profited from the institution of slavery. … This litigation presently consists of nine individual lawsuits, and these individual Plaintiff’s [sic] have filed a consolidated complaint.
The Plaintiffs …, on behalf of themselves and the classes they seek to represent, seek reparations on behalf of all “descendants of formerly enslaved Africans” and all living “formerly enslaved African-Americans.” Specifically, Plaintiff’s seek an accounting, constructive trust, restitution, disgorgement, compensatory and punitive damages arising out of the named defendants’ alleged past and continued wrongful conduct relating to the institution of slavery.
The named defendants … are eighteen present-day companies whose predecessors are alleged to have been unjustly enriched through profits earned either directly or indirectly from the Trans-Atlantic Slave Trade and slavery between 1619 and 1865, as well as post-Emancipation slavery through the 1960s.
V. Conclusion
It is beyond debate that slavery has caused tremendous suffering and ineliminable scars throughout our Nation’s history. However, Plaintiffs’ claims … fail based on numerous well-settled legal principles. First, Plaintiffs’ claims are beyond the constitutional authority of this court. Without alleging any specific connection between themselves and the named Defendants, Plaintiffs lack essential constitutional standing requirements to bring their claims. Second, prudential limitations prohibit the court from deciding such broad questions of social importance when such claims are brought on behalf of absent third parties, as Plaintiffs attempt here. Third, the long-standing and well-reasoned political question doctrine bars the court from deciding the issue of slavery reparations, an issue that has been historically and constitutionally committed to the Legislative and Executive
branches of our government. Fourth, Plaintiffs’ claims are untimely. Conceding that many of the torts alleged in the Complaint occurred prior to the formal end of slavery, Plaintiffs fail to show how any of these claims fall within the applicable statutes of limitation. Finally, under the rules of procedure which guide the federal judicial system, Plaintiffs’ Complaint fails to state a claim upon which relief can be granted, a serious defect the court cannot overlook regardless how egregious the circumstances giving rise to the claims.
In summary, Plaintiffs’ attempt to bring these claims more than a century after the end of the Civil War and the formal abolition of slavery fails; this determination is consistent with the position taken by numerous courts which have considered the issue over the last century. Ultimately, the legal obstacles prohibiting judicial resolution of such claims cannot be circumvented by the courts. … Some may view this ruling as a condonation of ancient wrongs. That view is wrong. To suggest that the lions have won again and that the court is impervious to the human suffering at the core of this case would be absurd. The reasonable prudent person will read this opinion with care. We strive, case by case, within an imperfect system of law, through human endeavors, towards the unattainable perfect justice we seek.
In conclusion, we note some local initiatives within the United States and then an analysis by the UN Special Rapporteur on racism that rebuts some of the principal objections often made to reparations. The local initiatives are recounted in a report by the UN High Commissioner for Human Rights (UN Doc. A/HRC/47/53 (2021) para. 57):
In the United States, for example, litigation was instigated against the city of Tulsa, Oklahoma, regarding the 1921 massacre; the Maryland Lynching Truth and Reconciliation Commission has been established; memorialization initiatives have been undertaken in Montgomery, Alabama; reparations will seek to “address the historical wealth and opportunity gaps that African American/Black residents of Evanston experienced”; and, at the federal level, a bill (HR40) has been introduced to establish a commission to study and develop reparation proposals for African-Americans. Mappings, apologies and reparations initiatives have been launched at the state and local levels by universities and religious groups, among others, regarding their historical relationship to enslavement. The private sector has also begun issuing formal apologies and undertaking certain commitments towards reparations.
E. TENDAYI ACHIUME, REPORT OF THE SPECIAL RAPPORTEUR ON CONTEMPORARY FORMS OF RACISM, RACIAL DISCRIMINATION, XENOPHOBIA AND RACIAL INTOLERANCE
UN DOC. A/74/321 (2019)
Political and legal resistance to reparations
45. Serious political opposition to reparations for colonialism and slavery remains among the countries that benefited the most from both. … [I]n Durban in 2001, certain former colonial powers remained staunchly resistant to formal apologies for slavery and colonialism, and to any acknowledgment of the pressing need for reparations. [T]he Regional [preparatory] Conference of the Americas … adopted the following strong statement acknowledging that:
the enslavement and other forms of servitude of Africans and their descendants and of the indigenous peoples of the Americas, as well as the slave trade, were morally reprehensible, in some cases constituted crimes under domestic law and, if they occurred today, would constitute crimes under international law. [And that] these practices have resulted in substantial and lasting economic, political and cultural damage to these peoples and that justice now requires that substantial national and international efforts be made to repair such damage. …
46. Canada and the United States opposed the inclusion of this important paragraph in the report of the Regional Conference. … The report of the European Conference did not even mention peoples of African or Asian descent.
47. Political opposition to the subject of reparations in some countries is so deep that even attempts to study the issue have been consistently blocked at the legislative level. For example, between 1989 and 2023, Congress has failed to act on a draft bill, H.R. 40, entitled “Commission to Study and Develop Reparation Proposals for African-Americans Act”.
48. Conventional analysis of international law, including by former colonial nations, identifies a number of legal hurdles to the pursuit of claims for reparations for slavery and colonialism. Among the most salient legal hurdles identified is the intertemporal principle in international law, codified in article 13 of the articles on responsibility of States for internationally wrongful acts. The intertemporal principle stresses that a State is responsible for violations of international law only if, at the time of the violation or its continuing effects, the State was bound by the legal provisions it transgressed. Numerous States have appealed to the non-retroactive application of international law to deny that they have a legal obligation to provide reparations. For example, … Germany has argued that its obligations [to the Ovaherero and Nama peoples of Namibia] are “historical” and “moral”.
49. First, the intertemporal principle is subject to exception, including when (a) an act is ongoing … or (b) the wrongful act’s direct ongoing consequences extend into a time when the act and its consequences are considered internationally wrongful. That means that racial discrimination rooted in or caused by colonialism and slavery that occurred after each had been outlawed cannot be subject to the intertemporal bar. Second, the intertemporal principle does not apply to present-day racially discriminatory effects of slavery and colonialism, which States are obligated to remediate, including through reparations. The intertemporal principle cannot be said, per se, to bar all claims for reparations for racial discrimination rooted in the events and structures of slavery and colonialism. …
50. … [T]he intertemporal principle has a long history of service to both slavery and colonialism. … [I]nternational law itself played an important role in consolidating the structures of racial discrimination and subordination throughout the colonial period, including through customary international law, which was coconstitutive with colonialism. Part of the problem, then, is that international law has not fully been “decolonized” and remains replete with doctrines that prevent the reparation and remediation of the inequality and injustice entrenched in the colonial era. When Member States and even international lawyers insist on the application of the intertemporal principle as a bar to pursuing reparation and remediation of racial injustice and inequality, they are, in effect, insisting on the application of neocolonial law. Legal efforts are more appropriately directed at developing international doctrine that can ensure the equal treatment and recognition of all human beings irrespective of race, and that is, in part, what is at stake in debates on reparations for slavery and colonialism.
51. Other legal concerns involve the difficulties in potential matters of responsibility and causality, especially with regard to the time that has passed since the transatlantic slave trade and colonialism. The concern is that determining the individuals responsible for horrific acts, the identities of the victims, the descendants of the victims and how much is owed poses insurmountable legal difficulties. The legal complexity that would be and is involved in pursuit of individually and even class-based legal claims for reparations are genuine. However, such difficulties cannot be the basis for nullifying the existence of underlying legal obligations. …
…
53. Several States have refused to issue a formal apology for their roles in slavery and colonialism, instead issuing expressions of remorse or regret. States appear to be driven by concern that formal apologies could be construed as an admission of legal responsibility, generating lengthy legal claims and financial compensation. Such concerns not only put the [UN Guidelines on reparations] on hold, but also drove the dilution of the strong calls for apologies and reparations articulated … during the lead-up to [Durban]. …
54. Development aid and national reform can certainly form part of the suite of reparatory measures for slavery and colonialism. However, if pursued in a manner that completely denies the connection between contemporary problems and their historical origins, such initiatives cannot do the necessary work of repairing structures of racial inequality and discrimination rooted in historic injustice. Such ahistorical and uncontextualized
development aid similarly fails to fulfil specific international human rights obligations relating to the contemporary manifestations of historic racial discrimination and injustice. …
QUESTIONS
1. Does Waldron’s ‘supersession thesis’ suggest any conclusions that might be relevant in the debate over reparations for slavery or colonialism? Compare Cuneen’s approach focusing on the need to assert indigenous sovereignty which ‘demands a reimagining of how we conceptualize sovereignty and a rethinking of the institutional and governance arrangements required to give it effect’.749
2. Are the causal links suggested in the analyses of the ‘reverse reparations’ paid by Haiti to France sufficiently clear as to make it a relatively straightforward case in favour of an obligation to pay reparations?
3. At its peak, the British Empire governed a quarter of the world’s population and between onequarter and one-fifth of its land surface.750 Does this suggest that the United Kingdom bears a special responsibility in terms of the payment of reparations, or that the magnitude of the issues raised is simply too great to warrant consideration?
4. In assessing the case for reparations for slavery and its aftermath in the United States, what weight should be given to predictions of a massive backlash from the white population?
749 C. Cunneen, ‘Settler Colonial States and Transitional Justice’, in J. Meierhenrich et al (eds.), The Oxford Handbook of Transitional Justice (2023) 000.
750 D. Judd, Empire: The British Imperial Experience, 1756 to the Present (1996) 2.