Cornell International Law Journal Volume 48 Article 2 Issue 3Issue 3 - Fall 2015 Just Repair Lisa J. Laplante Follow this and additional works at:http://scholarship.law.cornell.edu/cilj Part of theLaw Commons Recommended Citation Laplante, Lisa J. (2015) "Just Repair,"Cornell International Law Journal: Vol. 48 : Iss. 3 , Article 2. Available at:http://scholarship.law.cornell.edu/cilj/vol48/iss3/2 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell International Law Journal by an authorized editor of Scholarship@Cornell Law: A Digital Repository. For more information, please [email protected]. \\jciprod01\productn\C\CIN\48-3\CIN302.txt unknown Seq: 1 24-FEB-16 9:32 Just Repair Lisa J. Laplante† “Just Repair” offers, for the first time, a comprehensive account of the author’s original theory of reparations for redressing atrocities. Respond- ing to a gap in the literature concerning theoretical models for reparations, this novel theory aids governments in satisfying their international obliga- tion to guarantee just repair for victims who have suffered a violation of their fundamental rights. Based on a decade of empirical studies of repara- tion programs, the author presents a user-friendly approach for govern- ments facing daunting challenges when trying to repair the harm suffered by hundreds, and sometimes thousands, of victims of political violence, repression, and armed conflict. Governments often opt for an administra- tive solution when it is not feasible for every victim to use civil suits to litigate their claims. These administrative regimes often draw upon the concept of reparative justice, adopting a “legalistic” approach that calcu- lates damages and awards lump sums or annuities. These payments tech- nically fulfill the international obligation to protect the recognized right to reparation enjoyed by all victims of human rights violations. Yet recent scholarship questions whether administrative programs respond ade- quately and appropriately to the needs of victims, especially when govern- ments implement reparation programming without consulting victims, and thus fail to meet the victims’ expectations and demands. This misaligned policy results in victim dissatisfaction with, and even rejection of, repara- tion programs. Yet, in exposing this problem, few scholars offer a theoreti- cal framework for a broader analysis of why this policy failure occurs. This Article responds by suggesting that the rift between theory and practice arises in part due to the lack of a coherent theoretical framework to explain the justice aims of reparations that may not only guide the planning and implementation of reparation programs, but also third-party evaluations of these projects. Additionally, there is still minimal international law gui- † Associate Professor & Director of the Center for International Law and Policy at New England Law/Boston. I am grateful to Jon Bauer, Kali Murray, Michael Fischl, and Richard Wilson for their thoughtful comments on earlier drafts of this Article. I also appreciate the feedback offered by Alfred Brophy, Dinah Shelton, Mark Osiel, Andy Reiter, Naomi Roht-Arriaza, Paul Berman, Marc Galantar, and Stan Cox. This Article also benefitted from a presentation at the 2013 Law & Society Conference in Boston, Massachusetts. I thank all who participated in that exchange of ideas. I want to express my gratitude to Caitlin Peruccio for not only her excellent assistance with the research and editing but also her enthusiasm for this subject. I also appreciate the help of Jocelyn Kennedy, Kevin Cummings, and James Gallagher in the first stages of this research, and I also want to thank Nicole Miller and Alexander Conley for their help with later stages of editing this Article. This law review article arises out of and expands on a preliminary introduction of my theory in a book chapter entitled The Plural Justice Aims of Reparations which appears in TRANSITIONAL JUSTICE THEORIES (Susanne Buckley-Zistel et al. eds., 2013). All opinions and possible errors are my own. 48 CORNELL INT’L L.J. 513 (2015) \\jciprod01\productn\C\CIN\48-3\CIN302.txt unknown Seq: 2 24-FEB-16 9:32 514 Cornell International Law Journal Vol.48 dance of what constitutes an effective, adequate, and appropriate repara- tion program. Thus this Article explains the theoretical underpinning of the author’s novel theory called the “justice continuum of repair,” which draws from classic legal and political theories to describe the overarching justice aims of reparations in transitional justice settings. This account better accommodates the multilayered justice aims held by victims, espe- cially in light of the great diversity of human rights violations they suffer, in addition to the variance in demographic characteristics like gender, class, age, and location. This theory builds on the work of Amartya Sen in arguing that the “positionality” of victims will influence what they perceive to be necessary to feel repaired and that a plural approach should be adopted when designing a reparation policy. To achieve this end, this Arti- cle proposes that a government should adopt a participatory approach while planning and implementing its reparation programs to accommodate better and manage the multiple justice aims and expectations of victims, and thus help to enhance the effectiveness and legitimacy of a national reparation policy. Moreover, this framework will contribute to the develop- ment of evolving international standards for assuring fair and just repara- tion programs. Ultimately, a pluralist theory offers a more coherent understanding of the justice aims of reparation programs while still pro- moting the universalistic concept of the right of reparations. Introduction ..................................................... 514 R I. Repairing the Past........................................ 520 R A. (Re)enforcing the Right to Reparations................. 523 R B. Administering Repair ................................. 525 R II. The Plural Justice Aims of Reparations ................... 530 R A. The Justice Continuum of Repair Model ............... 531 R B. A Plural Approach to Reparations...................... 534 R 1. An Individualized Plural Account .................. 536 R 2. Constructs, Positionality, and “Felt Justice Needs” .. 539 R III. The Justice Stops Along The Justice Continuum of Repair. 543 R A. Reparative Justice ..................................... 543 R B. Restorative Justice..................................... 547 R C. Civic Justice .......................................... 555 R D. Socio-economic Justice ................................ 562 R IV. Implementing a Plural Approach to Reparations .......... 566 R A. Comprehensive Approaches to Reparations............. 567 R B. Activating the Justice Continuum of Repair Through Participation.......................................... 570 R C. Developing a Bottom-up Taxonomy of Reparation Standards............................................. 575 R Conclusion ...................................................... 576 R Introduction Our era boasts an increasing fascination with the subject of repara- tions in the aftermath of tragedy. The United States is most familiar with the administrative reparation programs established to compensate the vic- \\jciprod01\productn\C\CIN\48-3\CIN302.txt unknown Seq: 3 24-FEB-16 9:32 2015 Just Repair 515 tims and their families of the 9/11 attacks, the BP oil spill, and most recently the Boston marathon bombing.1 These commissions were set up by, or in collaboration with, the Federal Government to distribute compen- sation to victims in lieu of individualized court proceedings.2 Similarly, countries such as Germany, Chile, and South Africa have opted for non- judicial, administrative reparations programs to redress the harm caused by deliberate criminal acts.3 Unlike our experiences in the United States, these foreign programs addressed historical periods of gross and system- atic human rights violations commissioned or tolerated by the State.4 These types of extraordinary cases belong to the field of “transitional justice,” which generally refers to the array of justice mechanisms adopted to confront and redress past atrocities.5 For example, after the end of Apartheid, South Africa entered a period of transition with the election of Nelson Mandela and sought to address the atrocities produced by Apartheid as part of a larger political and legal project.6 South Africa formed the Truth and Reconciliation Commission in 1995 to create a forum for the voices of victims as a way to repair the past.7 It also included a special committee to distribute monetary compensation in a more tradi- tional form of reparation.8 South Africa’s program represents an innovative model of exceptional administrative remedies. While some of these programs have sought to provide an array of pecuniary and non-pecuniary measures, others default to modest monetary packages.9 For example, starting in 1998, the South 1. See, e.g., KENNETH FEINBERG, WHATIS LIFE WORTH?: THE UNPRECEDENTED EFFORT TO COMPENSATETHE VICTIMSOF 9/11 (2005); Amy Schoenfeld, Where BP’s Money is Land- ing, N.Y. TIMES (July 3, 2010), http://www.nytimes.com/2010/07/04/business/ 04metricstext.html?_r=0; John Schwartz, To Run Victim Fund, Boston Calls on the Special- ist, N. Y. TIMES (May 14, 2013), http://www.nytimes.com/2013/05/15/us/in-boston- kenneth-feinberg-again-divides-a-victims-fund.html. 2. See FEINBERG, supra note 1, at xv–xvi. 3. See generally PRISCILLA B. HAYNER, Truth and Reparations, inUNSPEAKABLE TRUTHS: TRANSITIONAL JUSTICEANDTHE CHALLENGEOF TRUTH COMMISSIONS 163 (2d ed. 2010). 4. As opposed to isolated violations, gross and systematic violations affect a signifi- cant portion of individuals. While they traditionally refer to the violation of civil and political rights, some reparation programs look at the widespread violation of economic and cultural rights. Some of these violations would also rise to the level of international crimes, such as torture, genocide, and crimes against humanity. While this Article approaches the issue from a human rights approach, in some contexts of conflict it might be that a transitioning regime applies the framework of international humanita- rian law, which could have implications for reparations programs. See, e.g., Julien Piacibello, Ad Hoc Reparation Mechanisms, 35 HOUSTON J. INT’L L. 81, 89–95 (2013). I thank Dinah Shelton for bringing to my attention the need to offer some parameters for understanding the rights violations I am discussing. 5. See generallyTRANSITIONAL JUSTICEINTHE TWENTY-FIRST CENTURY: BEYOND TRUTH VERSUS JUSTICE (Naomi Roht-Arriaza & Javier Mariezcurrena eds., 2006). 6. See generally CHARLES VILLA-VICENCIO & WILHELM VERWOERD, LOOKING BACK, REACHING FORWARD: REFLECTIONS ON THE TRUTH AND RECONCILIATION COMMISSION OF SOUTH AFRICA (2000). 7. Christopher J. Colvin, Overview of the Reparations Program in South Africa, in THE HANDBOOKOF REPARATIONS 176, 181–83 (Pablo de Greiff ed., 2006). 8. Id. at 181. 9. HAYNER, supra note 3. \\jciprod01\productn\C\CIN\48-3\CIN302.txt unknown Seq: 4 24-FEB-16 9:32 516 Cornell International Law Journal Vol.48 African government made a one-time payment of R30,000 (US $3,750) to some 14,000 people identified by the Truth and Reconciliation Commis- sion as victims of crimes—such as torture and extrajudicial killings—com- mitted during Apartheid.10 In 2001, Germany established a foundation through a negotiated settlement that paid former forced laborers of the Nazi regime DM 5,000 (approximately US $2,500) and former slaves DM 15,000 (approximately US $75,000) to 1.62 million claimants.11 Critics of these modest payments call into doubt whether they ade- quately compensate for the substantial monetary and emotional harm caused by state-sanctioned terror.12 Even more harmful is that such administrative programs, by confining themselves to very legalistic, “ordi- nary” versions of remedies, may miss the mark in satisfying local concepts of justice. Here, empirical research has begun to reveal how participants in transitional justice projects—especially victim-beneficiaries along with social and legal advocates—expect reparation programs to go beyond sim- ple payment for calculable losses, even if this initial step is an important starting point.13 In contrast to administrative programs’ narrow vision of justice, local actors make demands and hold expectations that invoke a wider range of justice aims. The ambitious agenda they put forward can include: repara- tive justice to attend to the harms of victims who bore the brunt of the violence; restorative justice to mend local relations, empower victims, and foster reconciliation; civic justice to vindicate rights and cultivate active citizens in nascent democracies; retributive justice to sanction and incen- tivize governments to deter future crimes through better security force training and punishment for violations of the law; and even socio-eco- nomic justice to address historical inequalities underlying the human rights violations caused by conflict and repression. All of these strands of justice weave through most transitional justice reparation processes.14 Arguably, the very nature of non-judicial, policy driven initiatives—as opposed to court adjudication—opens the door for a more expansive interpretation of the theoretical orientation of reparations in these settings. Yet, monographs authored by academics and practition- ers alike confirm a high level of victim dissatisfaction that sometimes leads 10. Colvin, supra note 7, at 177, 189. 11. John Authers, Making Good Again: German Compensation for Forced and Slave Laborers, inTHE HANDBOOKOF REPARATIONS 421, 434 (Pablo De Greiff ed., 2006). 12. See, e.g., Brandon Hamber, Reparations as Symbols: Narratives of Resistance, Reti- cence, and Possibility in South Africa, inREPARATIONS: INTERDISCIPLINARY INQUIRIES 252 (Jon Miller & Rahul Kumar eds., 2007). 13. See discussion infra Part II.B. 14. With the mainstreaming of transitional justice in global politics, more victims, their advocates, and scholars call for reparations as a part of a country’s transition to peace. See, e.g., Matthew F. Putorti, The International Legal Right to Individual Compen- sation in Nepal and the Transitional Justice Context, 34 FORDHAM INT’L L.J. 1131, 1154 (2011); Fernando Val-Garijo, Reparations for Victims as a Key Element of Transitional Justice in the Middle East Occupied Territories: A Legal and Institutional Approach, 6 INT’L STUD. J. 39, 39 (2009). \\jciprod01\productn\C\CIN\48-3\CIN302.txt unknown Seq: 5 24-FEB-16 9:32 2015 Just Repair 517 to rejection of government reparation policy.15 These studies detail how governments often fall woefully short of meeting the demands of victims because the actual implementation of reparation programs may not be designed to meet the varied expectations of victims, and thus the programs fall short of the theoretical justice aims they represent. While this scholarship offers a critical examination of reparations, it typically fails to articulate a fully developed theory for its exploration, although such a framework could help direct our attention to a more last- ing solution. As a result, the field of transitional justice has not come to terms with the full meaning of “just” remedies. We still lack a cohesive framework to guide our understanding of how justice informs the over- arching rationale, purpose, and aim of reparation programs, as well as to help us judge whether or not reparations are adequate, effective, prompt, and appropriate—the standards established in 2005 by the United Nations’ Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (Basic Principles).16 This failure has significant and practical consequences for actors seeking to achieve just repair for victims in transitional justice settings because pro- grams are often designed without considering the needs or demands of victims. Oversights of this nature can have devastating consequences for democratic societies that are already fragile because of pre-existing conflict. This Article responds to this gap by offering a novel model for our understanding of the plural justice aims of reparations. Based on an analy- sis of the existing literature on reparations and transitional justice, this Article presents a comprehensive examination of the “justice continuum of repair,” an organization of the most prominent theories relied upon to explain and justify different visions of reparations in the field of transi- tional justice. The justice continuum of repair proposes that rather than one meta-theory, a plural theory gives coherence to reparation schemes. Certainly, the exceptional nature of post-conflict reparation programs expands traditional notions of redress normally associated with peacetime domestic court settings.17 To construct the justice continuum of repair, I draw from traditional concepts of legal pluralism. Legal pluralism is an analytical device with a long history that has been insufficiently explored in the field of transitional justice.18 Thus, a second aim of this Article is to 15. See, e.g., WAGING WARAND MAKING PEACE: REPARATIONSAND HUMAN RIGHTS(Bar- bara Rose Johnston & Susan Slyomovics eds., 2008). 16. G.A. Res. 60/147, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Seri- ous Violations of International Humanitarian Law, pmbl., Sec. IX, U.N. Doc. AfRES/60/ 147 (Mar. 21, 2006) [hereinafter Basic Principles]. 17. Id. at princ. 2(c). 18. See Paul Schiff Berman, Global Legal Pluralism, 80 S. CAL. L. REV. 1155, 1159 (2007) [hereinafter Berman, Global Legal Pluralism] (“International law scholars have not often paid attention to the pluralist literature, nor have they generally conceived of their field in terms of managing hybridity.”). Berman notes a few exceptions including \\jciprod01\productn\C\CIN\48-3\CIN302.txt unknown Seq: 6 24-FEB-16 9:32 518 Cornell International Law Journal Vol.48 perform this exercise. I utilize over a decade of empirical research of administrative reparation programs to offer this theoretical model as groundwork for applying the interpretive lens of pluralism to reparations in transitional justice settings.19 Specifically, this Article expands current concepts of legal pluralism by integrating an individualized approach to redress, thus inserting the fundamental question: What does a victim need to feel repaired? For vic- tims to answer this question, they must be directly engaged through a par- ticipatory process. This theory embodies the notion that justice in transitional justice rests on pluralistic values and ideals that reflect both local and individualized “felt justice needs.” To determine what constitutes adequate, effective, prompt, and appropriate reparations for human rights violations requires a subjective individualized approach. Views on repara- tions will vary depending on a range of factors, including demographics, rights violations, and other interests of the person.20 The end result will be multifaceted and complex, but ultimately a more efficacious reparation program. If programs meet these individualized views, they will be more likely to succeed because they will be seen as legitimate by the victims.21 William W. Burke-White, International Legal Pluralism, 25 MICH. J. INT’L L. 963 (2004); Benedict Kingsbury, Confronting Difference: The Puzzling Durability of Gentili’s Combina- tion of Pragmatic Pluralism and Normative Judgment, 92 AM. J. INT’L L. 713 (1998); Nico Krisch, The Pluralism of Global Administrative Law, 17 EUR. J. INT’L L. 247 (2006). See Berman, Global Legal Pluralism at 1175 n.87. 19. In general, Merry observes that “[t]here has been little anthropological attention to the process by which universal human rights ideas are adopted and applied locally, particularly in areas other than indigenous rights. The nature of cultural translation is an old anthropological problem, but the globalization of human rights discourse raises it in a new guise.” Sally Engle Merry, Transnational Human Rights and Local Activism: Mapping the Middle, 108 AMER. ANTHROPOLOGIST 29, 40 (2006). Moreover, Hinton has helped to highlight how legal anthropology has been “largely silent” on the topic of transitional justice with minimal engagement with the theory. Alexander Laban Hinton, Introduction: Toward an Anthropology of Transitional Justice, in TRANSITIONAL JUSTICE: GLOBAL MECHANISMSAND LOCAL REALITIES AFTER GENOCIDEAND MASS VIOLENCE 1, 6 (Alex- ander L. Hinton ed., 2010). 20. Of course, this approach may encounter challenges with regard to what interests will be considered legitimate, and thus further elaboration on how to reach some param- eters will be discussed infra. This concern is raised by Hansen who also recognizes the importance of asking “whose interests transitional justice serves and what, in fact, these interests are” but realizes that “one key concern to such discussions is the question of what makes up legitimate interests.” Thomas Obel Hansen, Transitional Justice: Toward a Differentiated Theory, 13 OR. REV. INT’L L. 1, 3 (2011). 21. Jaya Ramji-Nogales, Designing Bespoke Transitional Justice: A Pluralist Process Approach, 32 MICH. J. INT’L L. 1, 15 (2010) (noting that “the effectiveness of transitional justice mechanisms [should] be measured by perceptions of legitimacy on the part of relevant actors”). Sirleaf argues that “perceptions of transitional justice mechanisms matter. The justice that people see and experience shapes the reality of what is. As a consequence, it is important to examine the way people most impacted by mass violence perceive transitional justice processes meant to provide redress.” Matiangai Sirleaf, Beyond Truth and Punishment in Transitional Justice, 54 VA. J. INT’L L. 223, 228 (2014). See Jonathan Doak, The Therapeutic Dimension of Transitional Justice: Emotional Repair and Victim Satisfaction in International Trials and Truth Commissions, 11 INT’L CRIM. L. REV. 263, 264 (2011) (concurring that “it is vital that transitional justice theory sharp- ens its focus with regard to victims in order to be perceived as more accountable and legitimate”); Stuart Ford, A Social Psychology Model of the Perceived Legitimacy of Interna- \\jciprod01\productn\C\CIN\48-3\CIN302.txt unknown Seq: 7 24-FEB-16 9:32 2015 Just Repair 519 I recognize that in taking this approach, the proposed model will be more difficult to implement. To address this issue, I present guidelines and methodology to facilitate the application of this model, including par- ticipatory procedures, the diversification of reparation modalities, and the creation of a reparation taxonomy. Finally, I address how the search for uniformity in standards of prac- tice could potentially be complicated by this plural approach. Certainly, the field of transitional justice, much like human rights law generally, has been striving to universalize its standards.22 I contend that a pluralistic framework more accurately portrays the reality of reparation policy in tran- sitional justice settings and even supports a longer term process of estab- lishing uniformity. Due to their very nature, reparations in transitional justice evoke a necessarily dynamic vision of justice. While the universal right to reparation remains static, the content of this right is filled through a localized, decentralized, and victim-focused concept of repair. A growing movement of scholars support this position, including, most notably, Sally Engle Merry and Paul Berman, who seek a middle ground between the extremes of pluralism and uniformity. Ultimately, the pluralist process also serves as a critical means of fleshing out the U.N. Basic Principles standards of what constitutes adequate, effective, prompt, and appropriate reparations. This Article proceeds in five parts. Part I introduces the unique dilem- mas presented by countries with large numbers of human rights victims, often created by armed conflict, repression, and political violence. This Part then explains the advent of transitional justice as a response to these situations, paying special attention to the prevalence of truth commissions and their recommendations for distributing reparations. Part I further explains how the use of administrative reparation programs in transitional justice settings arises out of and reinforces the right to remedies and repa- rations in international law. Nevertheless, the actual implementation of these programs may fall short of the still undefined U.N. standards used to evaluate this universal right. I propose that this failure in reparation policy results from the lack of clear standards as well as a theoretical framework for understanding the aims of reparations. Part II presents the justice con- tinuum of repair as a novel theoretical model that rests upon a pluralistic understanding of justice, reflecting felt justice needs of victims, such as local understandings of what it means to be repaired. Part III describes the different threads of justice, which are grounded in nascent theories of jus- tice that scholars rely upon to justify reparation programs and constitute the justice continuum of repair. While these theories draw from classical tional Criminal Courts: Implications for the Success of Transitional Justice Mechanisms, 45 VAND. J. TRANSNAT’L L. 405, 407 n.2 (2012) (“[N]umerous studies by psychologists and sociologists have concluded that legitimacy is important to political and legal institu- tions because individuals are more likely to voluntarily adopt the norms of such institu- tions to regulate their own conduct when the institutions are perceived as legitimate.”). 22. This effort to universalize the transitional justice process may be seen in the efforts of international inter-governmental and non-governmental agencies that promptly advise new countries undergoing transition on the norms of the field. \\jciprod01\productn\C\CIN\48-3\CIN302.txt unknown Seq: 8 24-FEB-16 9:32 520 Cornell International Law Journal Vol.48 and contemporary legal and political philosophy, scholars adapted them to explain local understandings of repair. Specifically, the four types of jus- tice are: Reparative Justice, Restorative Justice, Civic Justice, and Socio-Eco- nomic Justice. Part IV offers practical guidance on how to implement the pluralistic model based on a comprehensive approach to diversifying the modalities of reparations as well as instituting a participatory approach. I propose that this approach will help to develop a taxonomy of reparation standards that will lead to better standards over time and thus flesh out the parameters of a plural approach to reparations. I. Repairing the Past Resort to administrative reparation programs no longer exists as a spo- radic or occasional response to the devastating harms caused by human rights violations. Rather, in the last decade, these programs have become regularized through the practice of transitional justice. Transitional justice is a “linguistic invention” that describes a network of actors from a multi- tude of countries grappling with how to redress a violent and repressive past that leaves a legacy of large scale abuse.23 An authoritative definition of transitional justice does not yet exist due in part to its newness as a field as well as its evolving nature; in the broadest sense, however, it pertains to “the view of justice associated with periods of political change.”24 Given this amorphous definition, it is unsurprising that the goals attached to transitional justice are ambitious. In particular, there is an aim to establish a “culture of legal normality after episodes in which grave crimes have been committed.”25 Thus, the rule of law, accountability, democratic institution building, and national reconciliation are viewed as avenues for peace and prevention of new cycles of violence.26 Transitional justice also overlaps with areas of international law related to post-conflict reconstruction, peacekeeping, conflict resolution, human rights, and development.27 Redressing the harms of the past is required to achieve these aims, which occurs through judicial and non-judicial processes and mechanisms. For 23. See Paige Author, How “Transitions” Reshaped Human Rights: A Conceptual His- tory of Transitional Justice, 31 HUM. RTS. Q. 321, 331 (2009) (offering an overview of the historical origins of the transitional justice field). 24. Ruti Teitel, Transitional Justice in a New Era, 26 FORDHAM INT’L L.J. 893, 893 (2003). 25. Fre´d´eric M´egret, Of Shrines, Memorials, and Museums: Using the International Criminal Court’s Victim Reparation and Assistance Regime to Promote Transitional Justice, 5 (May 13, 2009), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1403929. 26. U.N. Secretary General, Guidance Note of the Secretary General: United Nations Approach to Transitional Justice, 2, 3 (March 2010), http://www.unrol.org/files/ TJ_Guidance_Note_March_2010FINAL.pdf (“ . . . to come to terms with a legacy of large- scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation.”). 27. Former United Nations Secretary General Kofi Annan recognized this discipli- nary overlap in 2004, issuing an important imprimatur of the field in a report to the Security Council. U.N. Secretary General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, 4, U.N. Doc. S/2004/616 (Aug. 23, 2004) [hereinafter Rule of Law Report], http://www.unrol.org/files/2004%20report.pdf. \\jciprod01\productn\C\CIN\48-3\CIN302.txt unknown Seq: 9 24-FEB-16 9:32 2015 Just Repair 521 example, a transitioning country may resort to vetting, lustration, trials, testimony giving, institutional reform, and reparations.28 To some extent, the very idea of transitional justice is defined by the justice mechanisms it galvanizes.29 The range of these justice mechanisms reflects the changing face of war. The last half-century has seen a rise in internal armed struggles resulting in high levels of fatalities with as many as ninety percent of these fatalities being non-combatant civilians.30 These struggles leave weakened infrastructure and fractured societies with many families who mourn the dead and struggle to survive in the absence of a primary household bread-winner. These families may still be searching for the bodies of their loved ones who count among the “disappeared.” The living suffer from torture, rape, and arbitrary detention. Children are orphaned or recruited into armed combat. Whole communities are inter- nally displaced or forced to flee as refugees seeking exile. Under international human rights law, all of these people are “victims” of human rights violations.31 Most of these victims demand some form of justice. The same breakdown, however, of the rule of law and democracy that left these populations vulnerable to abuse and power politics in the first place also forecloses the possibility of quick redress available to these victims despite their enduring demands for justice.32 This situation describes the quintessential dilemma that defines the field of transitional justice: governments facing mass atrocity grapple with the stark reality that traditional judicial mechanisms used in “ordinary” times cannot address episodes of massive human rights violations.33 Transitional justice, as a field, can thus be conceived of as an innovative adaptation to imperfect justice while operating within the parameters of traditional notions of jus- tice.34 Transitional justice is a form of complementary justice where clas- sic mechanisms like court hearings may prove insufficient. For example, transitional justice historically concerned itself with the effect of amnesties negotiated to bring peace but which required forsaking 28. For a general description of these measures, see HAYNER, supra note 3. 29. Roht-Arriaza takes this approach to defining transitional justice. It is a “set of practices, mechanisms and concerns that arise following a period of conflict, civil strife or repression, and that are aimed directly at confronting and dealing with past violations of human rights and humanitarian law.” Naomi Roht-Arriaza, The New Landscape of Transitional Justice, in TRANSITIONAL JUSTICE IN THE TWENTY-FIRST CENTURY 1, 2 (Naomi Roht-Arriaza & Javier Mariezcurrena eds., 2006). 30. Duncan Pedersen, Political Violence, Ethnic Conflict and Contemporary Wars: Broad Implications for Health and Social Well-Being, 55 SOC. SCI. & MED. 175, 176–77 (2002). 31. Throughout the article, I use the term “victim” in its legal sense, which refers to someone who suffered a human rights violation. This Article, however, will discuss how the term “victim” can be contested as a general term of reference. 32. See Jamal Benomar, Justice after Transitions, inTRANSITIONAL JUSTICE: HOW EMERG- ING DEMOCRACIES RECKON WITH FORMER REGIMES 32, 41 (Neil J. Kritz ed., 1995). 33. SeeCarla Hesse & Robert Post, Introduction, inHUMAN RIGHTSIN POLITICAL TRAN- SITIONS: GETTYSBURGTO BOSNIA 13, 20–21 (Carla Hesse & Robert Post eds., 1999). 34. Posner and Vermeule argue that transitional justice rests along a continuum of dilemmas that impact “ordinary” justice problems. Eric A. Posner & Adrian Vermeule, Transitional Justice as Ordinary Justice, 117 HARV. L. REV. 761, 763 (2004).