Abstract

Excerpted From: Lisa J. Laplante and Ana María Reyes, Measuring Up: A Dialogical Model for Assuring a Reparative Process, 49 Law and Social Inquiry 118 (February, 2024) (41 Footnotes/References) (Full Document)

How do we evaluate the success of reparation programs that are designed to redress harms caused by violations of fundamental human rights? Historically, such evaluations have occurred when looking only at the tangible outcomes of redress programs, such as the distribution of compensation, services, commemorative objects, or policy reforms intended to prevent future violations. Certainly, a foundational principle in human rights law posits that the right to remedy consists of such tangible provisions. Yet, even though such outcomes are important, empirical research demonstrates that they often fail to leave victims feeling repaired and, at times, can even cause further harm if implemented in a top-down manner that ignores what author Lisa Laplante (2015, 539) refers to as the “felt justice needs” of the intended beneficiaries. Yet, even so, the state may continue to deem as “successful” or “complete” reparation deliverables, not understanding why recipients of these programs continue to feel unrepaired and may even reject the government's reparation program.

As the study of reparations for human rights violations has grown over the last several decades, scholars and practitioners have come to agree that this dissatisfaction often arises out of flawed participatory processes, or, in some cases, the lack of any participatory process, in the design and implementation of reparation programs (Laplante 2010-11). The response has been to call for a victim-centered approach that can assure more participation of the intended beneficiaries of these programs. However, such discussions have fallen short of offering a deeper understanding of what exactly this victim involvement should entail. Indeed, through their scoping review of the literature on victim participation in transitional justice, scholars Pamina Firchow and Yvette Selim (2022) argue that, while there is now a consensus that such programs must include more victim participation, there needs to be better theorizing and problematizing on how to assure beneficiary participation is not just more prevalent or “greater” but also more “meaningful.”

In response, we engage in this pursuit of unpacking the concept of meaningful participation by first offering the justification for such an inquiry as it pertains specifically to reparation programming for human rights violations, which occurs in a range of settings involving human rights enforcement, including but not limited to transitional justice and human rights litigation. In particular, we recognize that most of the literature still focuses on presenting victim participation as good policy (Méndez 2016). We take a different approach and propose that the notion of participation should be reconceptualized to be a reparative process that, in itself, is a part of the reparations owed to the victims of human rights violations and an additional right of victims. This reconceptualization presents two important functions.

First, it moves the idea of victim participation away from being merely good practice recommendations still left to state discretion and good will and thus runs the risk of being done poorly or not at all. In these situations, governments may adopt minimalist approaches to participation by merely checking off the box of completion regardless of the quality of victim involvement. Furthermore, there is no standard against which governments can be held accountable for such deficient implementation processes. In contrast, we argue that victims have a right to reparative processes grounded in international human rights law, which in turn obligates states to follow minimum standards that go toward assuring the quality of the approach taken to involve victims in the design, implementation, and evaluation of reparation programs. Thus, this shift in conceptualizing participation as a right, and, thus, intrinsic to reparations, helps to guard against governments resorting to tokenism and the mere consultation of victims as they come under more pressure to devote the appropriate resources toward assuring truly reparative processes.

Second, in reconceptualizing participation as a more comprehensive reparative process, governments must guarantee subjects the process to some agreed upon evaluation criteria, which may grow out of the same standards used to evaluate the outcomes of reparation programs. Responding to the fact that, at the time of writing, there has still been minimal exploration of approaches to evaluating the quality of participatory processes used to implement reparations for human rights violations, which in turn has resulted in less clarity on what steps are needed to reach this goal, we present one possible approach. We aim to contribute to the nascent effort to better conceptualize what it might look like to truly assess whether meaningful participation has been achieved or, in the case of our proposal, a reparative process.

We begin this presentation by arguing that, in contemplating any evaluation of a reparative process, it is first important to identify what should be evaluated before deciding how it should be evaluated. Thus, the authors present a model of a holistic reparative process that draws from dialogical aesthetics and pedagogy and that aims to level asymmetrical power relations through interpersonal engagement over a significant period of time. In proposing this approach, we highlight the central need to recognize the intrinsic value and dignity of the victims, the harm they have suffered, and the responsibility of the perpetrator, which arises through the co-creation of trust, community, and the conditions for non-repetition that accompany the delivery of reparation outcomes.

These dialogical processes offer greater potential to fulfill the standards that would be used to determine the ultimate success of the reparative process used to design, implement, and evaluate reparation programs by governments, interstate institutions, or hybrid state-private cooperation. Ultimately, the proposed methodology could be used in any scenario that involves the delivery of reparations for human rights harms. Again, responding to a still minimal exploration of what meaningful participation in a reparative process entails, we offer baseline requirements for what we deem to be a reparative process, while recognizing that these suggested procedural steps would need to be adapted to each new situation given that inherent to any reparative process is the need to first assess the context-specific needs of the individuals and communities awaiting redress and that this assessment would be co-directed by those same people. Where appropriate, we draw on the work of other practitioners and scholars who have also begun to flesh out approaches to meaningful participation, while also drawing from our own direct experiences and research.

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We recognize that our proposal for a dialogical model in facilitating reparative processes that better engage victims in reparation programs remains largely theoretical. To our knowledge, there is no one case study that exemplifies this approach perfectly, although a handful demonstrate aspects of it and with mixed results. For that reason, this proposal might meet with resistance as being far too aspirational and thus impossible to achieve, especially from governments that have made a good faith effort to implement a participatory process but have encountered great challenges and even failures. We respond to such skepticism by pointing out that change must begin with a shift in thinking and a commitment to resources, and while this approach would not be easy to apply, it promises to redirect government policy and action toward better dignifying those who have suffered great harm. In the long run, striving toward these ideals ultimately serves the victim-centered vision of reparations for human rights violations.

Lisa J. Laplante is Professor of Law and Director, Center for International Law and Policy, New England Law | Boston, Boston, MA, United States 

Ana María Reyes is Associate Professor, Latin American Art History; Director of Graduate Studies, Department of History of Art and Architecture, Latin American Studies, American and New England Studies, Boston University; Affiliate Researcher, David Rockefeller Center for Latin American Studies, Harvard University, Cambridge, MA, United States