Home > Interview > Beyond Compensation: a Conversation about Reparations with ICTJ’s Ruben Carranza


In early 2016, writer Ta-Nehisi Coates ignited a national conversation about reparations for slavery after asking Congressman Bernie Sanders about his position on the issue and then critiquing his response. More recently, the Movement for Black Lives included reparations as part of their platform of demands.

Éist took the opportunity to gain some insight on reparations programs and policy by speaking with Ruben Carranza, the Director of the International Center for Transitional Justice‘s Reparations Program. Read more about what is meant by the term and how reparations policies have been applied in various contexts around the world: 

 

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ICTJ’s Ruben Carranza

What exactly are reparations? Are they meant to be understood within a transitional justice framework?

Well, reparations would be a form of acknowledgement for the harm and the loss suffered for victims of human rights violations in the past.

They are part of transitional justice because not only do reparations acknowledge what happened, but they also represent a form of justice that might in many ways be more meaningful than simply prosecution of individual perpetrators or even truth-seeking on a very broad level that—in both cases prosecution and truth-seeking are often difficult to cover more victims than those who are asked to testify before a truth commission or those whose cases can be heard in court.

So reparations in many ways can be much broader in terms of its impact.

Do you think that most people have a general misunderstanding as to what is meant by the term “reparations,” as it seems to be largely understood to refer to a financial payment?

Right. Yes, not only a misunderstanding, but I think it’s also a valid understanding in many ways, because in practically all societies, all countries, you do have legal systems in which the remedy for harm, whether it’s an accident or something related to employment or contracts, breach of contract—in those situations, maybe in all countries, the remedy is to go to court, and going to court people usually ask for compensation to be paid for the harm they suffered. So, you know, in that sense, it is a valid understanding of what justice might look like in those situations.

Now, however, when you transpose that way of seeking justice into situations where the magnitude and number of human rights violations is so massive and takes place over a long period of time—in dictatorships for example—where the scope of the harm is so massive as well, in armed conflict for instance…going to court isn’t likely to lead to the kind of satisfactory justice that people expect. So in that sense compensation will never be enough.

So, I mean, in my own work, I also don’t want to diminish the value of compensation—it has its own relevance. It can give agency to some victims who, for instance, using money can lead new lives, can help women who want to leave their communities, their in-laws for example, when they are widowed and their husbands are disappeared.

So you have uses for compensation, but reparations in the context of transitional justice would be much broader because you have other material forms of reparations and you also have symbolic forms of reparations that obviously are not compensation.

How would you respond to the idea that reparations for slavery represent a “rising tide lifts all boats” approach?

Well, let me begin with some other example where the argument a “rising tide lifts all boats” has been used to argue against the giving of individual or even community reparations.

For example, in East Timor, there is still no reparations program even after the truth commission there recommended reparations, and even after we did a lot of work for instance on drafting a law on reparations. The first president of East Timor, Xanana Gusmao, once said that the best form of reparations for the people of East Timor is development. That it is the development of their economy that can help people in Timor rebuild, that it can help them overcome the violations and injustices they suffered during the 25 years of occupation by Indonesia of their country. And in saying that—in saying that development is the best form of reparations—it was essentially an argument that a rising tide—development—will lift all the boats, regardless of the needs and the predicament of different Timorese.

And that is precisely the problem, because they are not—not all of them have boats to begin with—and even if they do, they have different needs. They don’t all have the same need to ride their boats and go fishing. Some of them have physical difficulties; some of them have economic difficulties…so reparations is a way of addressing different types of needs, different kinds of harm.

Development is problematic as a response because it can address specific harms, economic ones, or access to social services, but not necessarily very specific types of harms.

When you apply the same argument that development can substitute for reparations, in a way I think that is partly the criticism against the Bernie Sanders’ formulation—if it can be called that, and I think it’s not very fair to call it that—I don’t think he was formulating a way of addressing the legacy of slavery as much as making a passing remark about it. But anyway, if that’s a criticism, it’s a valid criticism of what’s been described as the “Sanders view” on reparations.

So, I mean, I think…I did read the Coates article last year, and what I like about it are I guess two things. First, there is a very good economic argument in that. It’s not just anchored in the pain and the humiliation suffered by slaves and their families and their descendants over the decades of slavery, but it calculates the economic impact of slavery and how it is carried over past generations. And so that I think is a very important argument for reparations in the Coates article.

The second important argument is that he anchors it on acknowledgement. I think he accepts that—that’s why he would never propose any kind of formulation, any kind of calculating how much reparations should be in terms of payment of compensation. Because he did argue that it has to begin with acknowledging this economic impact.

And I think that should have been where—going to Bernie Sanders now—that should have been where the Coates argument and the Bernie Sanders, the larger perspective of the Sanders campaign on inequality and the need to address economic opportunities—that’s where they actually intersect. I think it’s a lost opportunity to not pursue that intersection.

Going back to speaking more broadly about post-conflict reparations programs, are there any examples of countries that have either recommended or carried out reparations programs? Do you think that it is necessary for reparations programs to coexist with other TJ mechanisms like truth commissions? Are there any post-conflict countries that have recommended or carried out reparations in the absence of any other mechanisms?

Yeah, there are, there are examples. Some of them don’t call them reparations, but they are, in so many ways, reparative in terms of intention. So you have for example in Nepal, the government after the peace agreement in 2006, the government began what it called a “relief” program which addressed some of the needs—certainly not all of the needs—of different categories of victims of human rights violations: families of those who were killed in the conflict, families of the disappeared, people who were injured, people who were displaced. There was compensation paid, there was an offer of scholarships for a certain number of children, there was an offer to either reimburse the cost of medical care or to provide access to specialized care in public hospitals…There are flaws, certainly, but that came in 2008 and went on until recently, and preceded the effort to establish a truth commission. The truth commission in Nepal was established only this year—I’m sorry, last year.

There are other examples. There are others where you’ve had—Tunisia is an example where some of the victims of the revolution in 2010, 2011, were given compensation, some medical care, some of them were given jobs in the public sector. That happened before the Truth and Dignity Commission was established.

You also have situations like the situation of “comfort women,” victims of sexual slavery in WWII. Japan has offered some form of compensation for them—of course it’s controversial—and there has never been any prosecution, any truth commission, any other kind of mechanism to address the needs of comfort women.

So you have had these examples, where reparations has taken place without any kind of institutionalization of truth-seeking.

Would you say that there is a certain recipe or type of framework that should be in place to better insure that a reparations program would be successful? It sounds as if, from the examples you just gave, that some sort of acknowledgement would have to precede a program like that.

Well, the acknowledgement can come through the payment of compensation or access to certain kinds of social services—healthcare, education, even housing—those can be forms of acknowledgement.

In some countries, the problem is really that using those material forms of reparations as acknowledgement has not been done, that makes the acknowledgement more meaningful than it was in the way it was given. For instance in Nepal, it was really more around distributing compensation, rather than conveying to the recipients that they would have been entitled to the reparation not out of the generosity of the government, but because they were victims of human rights violations, and that didn’t come through.

So it’s not so much a formula as intent. And of course governments are not always the most adept at conveying intent, and that’s why I think it’s important that organizations of victims, activists, are involved in the design of reparations programs. And if there has to be something indispensible in designing reparations programs, maybe that should be one of them—there should be meaningful victim participation in how reparations programs are designed.

How difficult is it to determine who qualifies to be a recipient of a reparations program? How would you go about trying to define the “victim class”?

I think the difficulty is for two reasons. First, in terms of the number of potential beneficiaries, that’s always where governments, government bureaucrats face challenges—especially when, say, dealing with armed conflict that has lasted for years or dictatorships that have lasted for decades—you would have a significant number of victims across different types of violations or conflict-related crimes. So, the challenge there is to be able to count beneficiaries, and in doing so, make sure that as many are included and that the most appropriate forms of reparations are made accessible.

Which of course is the second problem, because as you said at the start, reparations is often associated with compensation, and because that association is in the minds not only of victims and potential beneficiaries but also government officials, politicians, bureaucrats, they often begin with thinking about how much money they have to pay. That often becomes the obstacle that many countries do not ever overcome. So they give up in the face of what they think is the enormous cost of paying compensation, and that’s also the reason why discussing slavery reparations, the debate often gets stuck on “how much money are we talking about?” When in fact, we shouldn’t talk yet about how much, but the meaning of reparations for those who will receive it.

So those two challenges—the number of beneficiaries and the designing of the way by which you distribute the different types of reparations to them, those are universal across countries, whether they are third world countries or developed countries like Canada.

It would also then be a huge stumbling block to determine value in financial terms, if the program were to include compensation and attempt to address something like slavery. How would you even begin to approach coming up with a number?

Well in US courts, particularly, that seems to be almost an obsession, calculating the amount of compensation. Not that it is unique to the American legal system, but elsewhere, reparations programs have I guess not so much avoided but realized that trying to find the “magic number,” trying to find the just and appropriate amount of money to pay for the loss of a family member killed in conflict or disappeared under a dictatorship or tortured, there’s no magic number, there’s no formula.

And in a way, that was one of the lessons learned in Latin America—a lot of the reparations programs in Latin America were preceded by litigation at the Inter-American human right system. It wasn’t litigation—there were efforts to compute compensation, you know, to take into account what the person who died, what his profession was, how much income he expected to have, calculating that—only to realize that you are talking of one person, and when you go back to the country where he came from, you have thousands of others like him, with different lives and different experiences, so you cannot possibly calculate for each one. So what do you do?

Not that it is all arbitrary, but that you also then have to take into account that the State also has other competing priorities, that there is no way that the bureaucracy can calculate the need of each family, especially in such situations where the violations involved so many thousands of victims. So those are limitations that have been realized in other countries. But in a country like the United States where you have lawyers and the insurance companies and tort litigation which is all individualized and heavily quantified, then you have that problem.

How important do you think a national conversation about race, or some sort of institutionalized truth commission is to making the idea of reparations more of a reality? Or do you think it is unrealistic?

Well, I mean, you may have already seen some of the proposals—I think by Patrick Leahy in the past—and then I remember there are other members of Congress in the United States who have proposed resolutions to set up commission-type institutions that will lead to acknowledgement…and I think those will be helpful in sending the message that we are not talking about compensation as the goal here, but we are really looking at acknowledgement as the continuing goal, even after any compensation is made, for instance.

But I think there is also a long tradition in the United States of these commissions being established and even issuing reports. I think in the Coates article itself, he did trace some of the previous efforts setting up these kinds of commissions. But I don’t think it means we’ve tried these commissions and therefore it didn’t work—but I do think that it means there may be issues of timing and incremental building up that needs to happen.

In other countries, just because they set up a truth commission didn’t mean that all went well. You still have racism in South Africa. In Nepal, centuries of the caste system still exist. So the idea that a truth commission is the pinnacle of justice I think is misleading. There are always questions around when a truth commission is set up and what kind of social environment it will function in.

I guess right now there is a very active debate on race and reparations in the United States, so it’s possible that setting up a commission that will examine race again is timely, but it may also be possible that what may be more effective is very specific inquiries into issues that relate to race but not entirely race itself. It can be about equality, it can be about the depiction of African Americans in […] it can be many things in terms of truth-seeking, we need not go for an everything-all-at-once truth commission.

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