The good, the bad, and the ugly: Moral agency and the role of victims in reparations programs.

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).