2008] BOOK REVIEWS 233

book's comparative analysis, and deliver "beyond the black-letter" in-

sights for students and teachers alike.

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PABLO DE GREIFF, ED., T H E HANDBOOK OF REPARATIONS (Oxford and
New York, Oxford University Press, 2006)

Reviewed by Naomi Roht-Arriaza*

In the aftermath of massive repression, large-scale human rights

violations or armed conflict, what must be done to repair the social
fabric? Until the 1980s, the answer was generally some variant of
"forgive and forget." Starting with the Argentine transition from mil-
itary dictatorship, truth commissions and, more controversially, tri-
als, became the main weapons in the arsenal of "transitional justice."
Legal scholars and, eventually, governments, conceptualized the
post-conflict landscape as requiring attention to four goals: truth,
justice, reparation, and guarantees of non-repetition.
By the 1990s, the field of transitional or post-conflict justice
came into its own, spurred by the creation of the International Crimi-
nal Tribunals for the Former Yugoslavia and Rwanda, the establish-
ment of the International Criminal Court, the detention and
attempted extradition of Chile's Augusto Pinochet to Spain and by
other universal jurisdiction cases. These criminal trials took place
alongside a wave of fact-finding commissions, which have been
dubbed "truth and reconciliation commissions," "historical clarifica-
tion commissions," or simply "truth commissions." These had the
task, at a minimum, of listening to the stories of victims, establishing
an historical record, and drafting recommendations to the new gov-
ernment on measures to avoid a return to the bloody past. To date,
there have been over thirty such commissions, including those in
South Africa, Chile, Guatemala, El Salvador, Sierra Leone, and Libe-
ria. Truth commissions, once seen as a substitute for criminal trials
(which can pose political risks), increasingly became understood as a
complement to such trials. The landscape of criminal justice further
diversified with the introduction of hybrid national/international
courts like those of Sierra Leone, Cambodia, and East Timor. 1
Reparations, however, largely languished as the stepchild of
post-conflict justice. Although the United Nations General Assembly
recently has drafted principles and guidelines on reparations, 2 the

* Professor of Law, Hastings College of the Law, University of California.

1. For a fuller description of this process, see NAOMI ROHT-ARRIAZA & JAVIER
MARIEZCURRENA, EDS., TRANSITIONAL JUSTICE IN THE TWENTY-FLRST CENTURY: BE-
YOND TRUTH VERSUS JUSTICE (2006).
2. See Basic Principles and Guidelines on the Right to a Remedy and Repara-
tions for Victims of Gross Violations of Human Rights and Serious Violations of Inter-
national Humanitarian Law, G.A. Res. 60/147, 60th Sess. (Dec. 16, 2005).
234 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 5 6

subject of reparations programs received neither the theoretical at-

tention nor the practical uptake of criminal trials or truth commis-
sions. There was, of course, the German precedent for a massive

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reparations program, but then again, Germany is a relatively
wealthy state; the scope and modalities of the German programs
were considered of little value for cash-strapped, struggling govern-
ments emerging from civil conflict in the twenty-first century. Repa-
rations programs were a part of the transition in Argentina and
Chile, and truth commissions elsewhere included reparations among
their recommendations, but not much reparations legislation was ac-
tually implemented.
Part of the problem has been conceptual: reparations, in the
traditional inter-state sense of the term as well as in the context of
regional human rights courts and domestic litigation, involves resti-
tutio in integrum or putting the injured party back into the position
he or she would have been in had it not been for the wrongful acts of
the defendant. According to the U.N. principles and guidelines, repa-
ration encompasses several elements: restitution, rehabilitation, sat-
isfaction, and guarantees of non-repetition, and each of these
elements, in turn, consists of various components. But where the vic-
tims number in the hundreds of thousands, and where the country is
poor and the government is weak, meeting the goal of full reparation
can seem impossible. Thus, if the Peruvian government had paid to
each of 69,000 victims an average of $150,000 in damages as compen-
sation for summary executions and instances of torture and/or disap-
pearance, the total amount needed would have been greater than the
country's entire annual budget (p. 457). Clearly, another approach
was needed.
The need for some fresh thinking about reparations in poor coun-
tries prompted the International Center for Transitional Justice
(ICTJ) in New York to commission the studies that resulted in The
Handbook of Reparations. Two teams of authors were assembled,
one to compile the lessons learned from successful and unsuccessful
reparations programs, and the other to focus on theoretical and cross-
cutting issues. The Handbook is the result of these two efforts.
The first thing to say about the Handbook is that, at over a thou-
sand pages, it is really three books in one: ( D a series of country-
based case studies of reparations; (2) a section on themes and issues
raised in the conceptualization and design of administrative repara-
tions programs; and (3) a compendium of source documents, includ-
ing legislative decrees and regulations. The structure is therefore
similar to Neil Kritz's early three-volume set, published in 1995. 3
The Handbook's price ($199), unfortunately, is also huge, putting it
beyond the reach of many of the developing-country officials and non-
governmental activists that would constitute part of the book's natu-
ral readership. That is unfortunate; the book is full of useful theoret-
ical insights and practical lessons.

3. See N E I L J. K R I T Z , ED., TRANSITIONAL J U S T I C E : H O W E M E R G I N G D E M O C R A C I E S

R E C K O N WITH F O R M E R R E G I M E S (1995).
2008] BOOK REVIEWS 235

Second, the Handbook is not, strictly speaking, a "handbook." It

does not tell you what steps to follow to set up a reparations program,
although it does outline some of the major considerations at a rela-

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tively high level of abstraction. Rather, the Handbook contains a
thoughtful series of essays on how to think about reparations and on
how to conceptualize such issues as the difference between judicial
and administrative reparations, the goals of a reparations program
after massive human rights and/or humanitarian law violations, the
different components of a reparations program, and the potential im-
pact of different reparations programs on target populations. It also
contains some interesting chapters on how to finance reparations
programs. In approaching these questions, the various essays pro-
vide a wealth of information on what has been tried thus far.
The book begins with a series of case studies of the reparations
programs in Argentina, Chile, Brazil, South Africa, Malawi, and the
failure of proposed programs in El Salvador and Haiti. This first sec-
tion also contains two chapters on post-WWII reparations in Ger-
many and a chapter each on compensation for Japanese-American
internees, victims of September 11, and victims of the 1991 Iraq-Ku-
wait conflict. While several of these case studies are well known, for
others there has, until now, been little information available in En-
glish on how the programs were structured and carried out. A help-
ful introductory chapter summarizes the relevant respects in which
the programs differed, and the salient characteristics of each. As
these case studies make clear, reparations are a highly political pro-
cess, with many distinct constituencies. Even in the best of circum-
stances, providing money to survivors and families is an exercise
fraught with painful compromises, especially when other pieces of the
post-dictatorship or armed-conflict agenda (like justice and truth-tell-
ing) are unfinished.
Perhaps the book's major contribution is in enriching the discus-
sion of the goals of reparations in the aftermath of massive violations
of human rights. The keystone article of Part II, "Justice and Repa-
rations" by Pablo de Greiff, the director of research at the Interna-
tional Center for Transitional Justice, explains a fundamental
difference between two kinds of reparations: 1) reparations as a re-
sponse to massive criminality; and 2) reparations granted in cases
where criminal human rights violations were the exception, not the
rule. De Greiff argues that in the former cases, the goals of a repara-
tions project cannot be the tort-type damages that are typical in the
latter cases. Instead, de Greiff posits three goals in massive criminal-
ity cases: recognition, civic trust, and social solidarity. Reparations
thus become the material form of recognition owed to fellow citizens
whose fundamental rights have been violated; civic trust involves us-
ing reparations to signal the inclusion of victims in the political com-
munity whose institutions can prove themselves worthy of trust.
Reparations likewise give concrete expression to a society's concern
for all its members, including those with the least amount of political
power. These three goals are independent of restitutio in integrum
and assume forward-looking as well as backwards-looking aspects.
236 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 5 6

In practical terms, this means that the amount and form of repa-
ration need not be linked to the actual damages suffered. What
forms, then, should reparations take? The chapter by Brandon

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Hamber on "Narrowing the Micro and Macro" starts with a useful
distinction: from the individual's perspective, the aim of reparations
is to repair or make amends, i.e., to make good materially and psy-
chologically for what has been damaged, lost, or destroyed. Thus, all
reparations, including money and goods, are in some sense symbolic.
As Hamber puts it: "they stand as 'symbolic' markers of redress, rec-
ognition, or acknowledgement in their own right" (p. 566). Once this
is understood, the key questions are about the symbolic meaning of
whatever is being provided, whether reburials, apologies, service
packages, or individual pensions.
All the authors in the volume insist on a further consequence of
these distinctions: reparations programs cannot stand alone but
must be integrated into an overall effort to do justice that includes
truth-telling, institutional reform, and some exercise of the criminal
justice process. In addition, such programs must not confine them-
selves to distributing only one type of benefit, typically money. De
Greiff analyzes this facet of reparations programs in terms of com-
plexity and "internal and external coherence." Brandon Hamber
notes that, in the absence of such coherence, reparations may be
viewed either as "blood money" or as a form of governmental largesse,
thus defeating the larger purposes of the reparations program. Eliza-
beth Lira's chapter on Chile and Maria Jose Guembe's chapter on
Argentina confirm these conclusions.
Applying these insights, one can divide the possible types of rep-
aration into material and symbolic, individual and collective. Mate-
rial reparations take the form of payments in money or in kind, either
goods or services. Most reparations programs to date have offered a
small one-time payment or a pension for the loss of a loved one or for
disability. Individual monetary payments raise a host of difficulties
and questions, only some of them dealt with in the Handbook. For
example, one reason proffered to avoid tort-type damages is the ine-
quality created among victims based on their past economic status.
This argument was particularly salient in critiques of the post-Sep-
tember 11 compensation scheme and was one reason the South Afri-
can committee on reparations urged a uniform lump sum payment for
all victims. But even reparations programs that distribute roughly
equal sums to victims according to category of violation or injury suf-
fered can run into other kinds of inequalities. For instance, some vic-
tims may have access to regional human rights courts (like the Inter-
American Court of Human Rights) or national civil compensation sys-
tems that award alternative or additional remedies, which may be
larger than the lump-sum reparation amount. Jaime Malamud-Goti
and Lucas Sebastian Grosman argue in their chapter on "Repara-
tions and Civil Litigation" that victims should be given a choice of
which system they want to access, while de Greiff worries about the
inequalities that this choice creates.
2008] BOOK REVIEWS 237

More recent reparations programs have revealed a number of

problems with individual monetary payments. Unfortunately, these
problems are given short shrift in the Handbook. One problem is the

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difficulty involved in adequately identifying victims and family mem-
bers. Early reparations programs tended not to encounter these
problems because relatively good records existed or because the rela-
tively small number of claimants was already on record, for example
through testimony to a truth commission. However, in both Peru and
Guatemala, identifying the children, spouses, and parents of those
killed has been daunting, especially because, in both conflicts, the
warring sides burned down many city halls, churches, and other re-
positories of documents. The lack of documentation leads to a di-
lemma; it would be naive not to worry about fraudulent claims, yet a
too-onerous claims process retraumatizes victims and detracts from
the dignificatory purpose of the reparations program. Until a reliable
process of documenting claims can be worked out, individual repara-
tions payments will be problematic.
In addition, individual payments, even if modest, can have unto-
ward effects on the security of beneficiaries in the high-crime envi-
ronments that often follow conflicts. Those receiving monetary
reparations may be besieged by family, neighbors, or con men, and
community conflict may follow. Christopher Colvin's chapter on
South Africa, for example, describes a study on the impact of urgent
interim reparations. That study found that those receiving the funds
often informed "neither their neighbors nor even their immediate
family members for fear of creating conflict or having the money sim-
ply taken away" (p. 189). Beneficiaries may prove vulnerable to
criminals, and women and the elderly in particular may have their
funds appropriated by others within the family. On the other hand,
reparations can, as Colleen Duggan and Adila Abusharaf point out in
a chapter on the gender implications of reparations, begin to em-
power women, at least if payments are targeted appropriately. Fu-
ture work on the topic would benefit from sustained attention to
these complications. To be fair, the gender aspects of the topic have
now merited their own ICTJ-led study, and the resulting case studies
have been published separately. 4
What are the alternatives to individual payments? One popular
option is service packages, which usually take the form of educational
grants, health services, or mental health programs. With the exam-
ple of the Chilean reparations scheme, mental health services for sur-
vivors are increasingly recognized as a key component of a
reparations program. An excellent article by Brinton Lykes and
Marcie Mersky discusses the forms such services can take and argues
against a clinical approach based on a simplistic post-traumatic
stress disorder model and, rather, in favor of a community-based, po-
litical, and historical approach to mental health service provision.
The problem with this latter approach, as with traditional provision

4. See RUTH RUBIO MARIN, ED., WHAT HAPPENED TO THE WOMEN? GENDER AND
REPARATIONS FOR HUMAN RIGHTS VIOLATIONS (2006).
238 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 5 6

of health and educational services, is that an untransformed state

apparatus may not be prepared to provide the services with the level
of respect for victims that would make the services feel truly

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reparatory.
Service packages raise the thorny issue of collective reparations,
defined here as reparations inuring to an entire community rather
than to specific victimized individuals. Governments tend to like the
idea of collective reparations because they are easier to fold into more
general development programs and because they allow the govern-
ment to downplay the political significance of reparations. Human
rights activists and victims groups (including the authors of several
studies in the Handbook) dislike the idea for the same reasons. Gen-
eral economic development is an obligation of governments that is not
unique to victims of atrocity or systematic discrimination. Payments
associated with a program of general development have none of the
symbolic meaning that a reparations program should have. Nonethe-
less, the link between reparations and development programs and
projects remains to be explored. The two overlap in time and space,
and surely one goal of a reparations program, as with genuine devel-
opment efforts, must be to improve the lives of those who have been
victimized.
Two final chapters in the Handbook go some way toward making
the link between development and reparation, focusing on financial
aspects of reparations programs. Alexander Segovia's exploration of
financing mechanisms finds that the regular government budget,
rather than some sort of specialized national or international fund, is
the only reliable source of funding for reparations. A chapter on
microfinance schemes, authored by Hans Dieter Seibel and Andrea
Armstrong, provides an intriguing exploration of the idea that repa-
rations would have a longer-lasting impact if they were combined
with some kind of community- or microbanking mechanism, building
on the success of microlending programs throughout the world.
What of the role of law, especially international law, in all this?
The two chapters by Richard Falk and Arturo Carrillo, focusing re-
spectively on international and Inter-American law, seem to say "not
much," except to frame background political arguments in favor of
reparations and to provide categories of repair gleaned from the ex-
tensive reparations jurisprudence of the Inter-American Court. It is
particularly surprising that none of the authors of the Handbook
spends time discussing or critiquing the U.N.'s 2005 principles and
guidelines. Finally, there is a compendium of national laws at the
back of the book. Although this section is not designed to be exhaus-
tive, it does make available in English primary documents from nine
different countries, and some of these documents are hard to find
elsewhere. The selection here is quite good, although it is a shame
that the very interesting Peruvian and Guatemalan reparations laws
could not be included because they were enacted after the Hand-
book's publication.
2008] BOOK REVIEWS 239

In all, the Handbook is a foundational volume for those working

in the field and a useful resource for those working on transitional
justice, area studies, comparative public or administrative law, or the

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transposition of international human rights norms into actual na-
tional practice.
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[Vol. 5 6
THE AMERICAN JOURNAL OF COMPARATIVE LAW
240