Moral, Social, and Political Reasons for Reparations
Additional to the international legal basis for reparations set out above, there are important moral, social, and political dimensions warranting consideration (De Greiff 2006a; Rombouts et al. 2005). These are particularly pertinent for conflict-affected developing countries and where there are large numbers of victims entitled to redress. This is because, despite the significance of international law, in such contexts—even ‘where there is an impulse to achieve redress’—the size of the task, coupled with the scarcity of resources (though international cooperation can go some way to mitigate this), demands appreciation of the limits on the ability of the state to provide ‘anything approaching’ adequate reparation in line with that envisioned in international law (Falk 2006: 492). That is to say, in cases of widespread, gross, and serious violations of human rights, in the wake of conflict, the claims of large numbers of victims cannot easily be redressed through the courts, due both to the number of victims and the incapacity of legal systems (OHCHR 2006).
In such contexts, as Falk suggests, the role of international law should be viewed mainly as ‘indirect’ (Falk 2006: 485). Tomuschat too highlights how international law ‘cannot prescribe fixed parameters for internal situations of large-scale injustices occurring during a national cataclysm’ (2002:176). For this reason, there is a strong case to be made for understanding reparations in conflict-affected developing countries such as the Solomon Islands as principally ‘an expression of moral and political forces at work’ (Tomuschat 2002:176). International legal standards are still binding but must be adapted and implemented to fit local circumstances (Mani 2002: 176).
Turning to consider the various moral, social, and political reasons for reparation, Lykes and Mersky highlight their potential to contribute to social reconstruction and reconciliation, seeking to ‘heal individual and social wounds’ (Lykes & Mersky 2006: 589). Rombouts et al. (2005) also examine the potential for reparations to promote peaceful coexistence among groups in society and to prevent acts of revenge. Similarly, de Greiff highlights the potential for reparations to contribute to goals of ‘recognition, civic trust and social solidarity’ (De Greiff 2006c: 451). The case for reparations might also be understood in terms of fairness: if the state denies victims’ claims for reparation, it is the same as conceding that it is not able to ‘sustain a fair regime’ (De Greiff 2006c: 459). In this way, reparations infer a political commitment to repair harm suffered and constitute public recognition of suffering (Rombouts et al. 2005), and so by implication, a break with the past (assuming the new or persisting government is committed to and capable of this). These are all reasons why the aid community might consider aiding reparations, in support of social change and development.
It is worth emphasising also that reparations may fulfil an important function for the healing of victims in transitional societies. This is because ‘[f]or some victims reparations are the most tangible manifestation of the efforts of the state to remedy the harms they have suffered’ (Viaene 2009: 2). This view helps to make the case for reparations and shows how reparations can complement other transitional justice measures implemented. As de Greiff aptly explains, criminal justice is a ‘struggle against perpetrators rather than an effort on behalf of victims’ and truth-telling without ‘other positive and tangible manifestations...can easily be considered as an empty gesture, as cheap and inconsequential talk’ (2006b: 2). Further, institutional reform is a long-term process that impacts on victims only ‘indirectly’ (De Greiff 2006b: 2). In this way, where prosecutions and institutional reform may ‘leave victims completely out of the picture,’ reparation is about providing remedies to victims in the transitional justice project (Rombouts et al. 2005; Viaene 2009: 354). So one sees the distinct, potential contribution of reparations for restoring the dignity of victims. Robins similarly makes this point, explaining that reparations are the most ‘victim-centred’ of the range of transitional justice mechanisms and in this way foster the inclusion of victims in the justice process (2011: 6). And yet development aid provided in the Solomon Islands since the end of the Tensions has supported all transitional justice mechanisms except reparations.