Justice in Context: The Relevance of Inter-American Human Rights Law and Practice to Repairing the Past

Source: (2006) In Pablo De Greiff, ed., The Handbook of Reparations. Oxford, New York, USA: Oxford University Press. Pp. 504-538.

“This chapter examines how international law contributes to contemporary understandings of transitional justice with respect to reparations for victims of gross and systematic human rights abuses. The author surveys the jurisprudence of the Inter-American Court of Human Rights through 2003 to determine how the Court’s practice can be used to guide the formulation of reparatory policies during political transition. Recognizing that the direct application of Inter-American case law to situations of mass atrocity is not always viable in practice, the author analyzes regional human rights jurisprudence, in particular that relating to compensation, to determine what role the Court’s rules can — and cannot — play as a reference for policymakers and societies faced with the challenge of designing a reparations program. He concludes that while landmark Court decisions like Velasquez Rodriguez provide general normative guidance, there are significant obstacles to extending to the transitional justice context many of the measures, amounts, and formulae relied upon by the Court in awarding compensation. The fairness of compensation outside the courtroom cannot be determined with reference to predetermined rules, but rather depends on the factual context in which the measures are adopted, including the number of victims involved. A better source of comparative inspiration is found in the Court’s growing practice of adopting nonmonetary reparations measures to deal with moral harm.” (excerpt)