Source: (2009) University of Pennsylvania Journal of International Law. 31(1): 257-294.

In the ongoing debate over reparations for slavery and its legacy in the United States, much of the reparations scholarship pays little attention to the quality of past reparations programs implemented domestically or abroad.' Most commentators emphasize the need for former wrongdoers to make apology, recompense, or restitution rather than looking at results-namely the restoration and recovery of victims. The problem is not limited to theorists and scholars. Repeatedly, the political contests over guilt and innocence that precede the development of reparations programs obscure consideration of the critical role that communities and individuals suffering from past abuses should play in establishing those programs in order to reestablish their personal well-being and societal standing. The resulting focus on wrongdoers replicates the former subordination of the victims of past abuses by rendering them the passive recipients of government actions, over which they have little or no control. This Article advances an important but overlooked measure for evaluating reparations programs: the role of victims in the design and implementation process. The increased use of reparations by governments to redress past injustices and bring closure to the misdeeds of the past, characterized the latter half of the twentieth century. 3 While this development, and the accompanying focus upon reparations by the human rights community, represent genuine improvements over the historic neglect of those abused by former regimes, few reparations programs have been particularly "good" when viewed from the victims' perspective.4 In fact, when evaluated based on their substantive rather than their symbolic restoration of victims and their families, most programs should be classified as either "bad" or "ugly." My basis for this characterization arises from the failure of most programs to afford injured groups and individuals a meaningful role in the design and implementation of reparations programs. As I have written elsewhere, "[e]fforts to redress past harms can actually be counter-productive, cruel, or insulting when they are not accompanied by actions that attend to both the needs and agency of the injured group."5 When using these criteria, the inadequacy of most reparations schemes becomes apparent, due to their primary focus on the needs and the moral agency of the former violators. This Article engages the discourse on reparations by focusing on the quality of domestic and international reparations programs in light of their routine failure to attend to the moral agency of the victims of past human rights abuses. Governments guilty of past injustices may express moral agency through formal apologies or even tacit acceptance of responsibility for past human rights abuses. Through their willingness to acknowledge past injustices and the injuries they caused, governments act as moral agents. Their agency is further expressed through financial or other measures directed toward victims. Historically, victims have been denied this same opportunity to develop agency as most reparations programs limit injured groups and individuals to the passive acceptance of government actions.6 This Article maintains that injured parties can best express moral agency through their participation in the development and implementation of reparations programs. This approach will allow injured parties to play an important role in the political community through their participation in the active remediation of their injuries. This Article consists of three Sections. The first Section briefly examines characteristics of the most common reparations approaches: compensation, restitution, and reconciliation. The second Section assesses the quality of four well-known reparations programs based on their attention to the victims' moral agency in the design and implementation process. The final Section considers an institutional-based approach to reparations as an underutilized means of redress that may best facilitate the moral agency of victims. (Author's abstract).