8.1 Introduction
Reparations represent an opportunity for those responsible for harm to redress victim-survivors in material and symbolic terms. Responsible actors providing reparations can acknowledge their responsibility for wrongdoing, and directly recognise victim-survivors as rights bearers. If successful, reparations can provide financial support, contribute to survivor healing, and rebuild trust between survivors and responsible actors. However, despite a significant amount of money in several national redress schemes for historical abuses, the approach taken fails to achieve these goals. Instead, redress often functions as a form of settlement and closure of claims regarding past wrongs and is limited in addressing inter-generational dimensions of historical-structural injustices. Section 8.2 considers the role of reparations as an element of transitional justice and previews the analysis of reparations across the four dimensions of power and emotions. Section 8.3 assesses the conceptual contribution of reparations to addressing historical-structural injustices, while Section 8.4 evaluates the contribution of existing redress schemes. Section 8.5 concludes by examining the potential and limits of reparations to address the mythical dimension of historical-structural injustices in material and symbolic terms.
8.2 Reparations as an Element of Transitional Justice
‘Reparation’ has been recognised as an umbrella term for different forms of redress, such as restitution, rehabilitation, compensation, apologies, or memorials.Footnote 1 Restitution, re-establishing the situation prior to the illegal act, constitutes a key objective of reparation in international law.Footnote 2 Where restitution is impossible or inappropriate given the gravity of the violation, compensation can be provided for the harm suffered, akin to tort law.Footnote 3 Originally, reparations were conceived of as a post-war remedy for inter-state conflict but have shifted to a more individual- and victim-focused approach in the post-World War II era,Footnote 4 with some significant and complex processes in contemporary post-conflict settings, such as in Colombia providing a range of measures to over 9 million victims.Footnote 5
Reparations can be conceived of as mechanisms across the four dimensions of power and emotion examined in this book. First, reparations can operate as a material form of empowerment for individual victim-survivors, aiming to meet health needs, provide some financial acknowledgement of the harm suffered, and enable access to specialised services that may address a lack of empowerment or experiences of neglect or marginalisation during the time a victim was unredressed. By accessing reparations, victims may exercise individual agency and have their harm recognised and acknowledged by state authorities.Footnote 6 Reparations intend to serve a healing function for individual victim-survivors and communities,Footnote 7 addressing emotional distress or trauma. However, there is growing awareness of potential psychological damage or re-traumatisation caused by ill-designed processes, which may scrutinise the life choices and experiences of abuse by victim-survivors,Footnote 8 in a non-therapeutic way.
Second, reparations can affirm or challenge the distribution of power in existing structures. To date, reparations regarding historical-structural injustices have largely remained predicated on a corrective or interactional conception of justice, based on responding to harm of a victim-survivor by a responsible individual, organisation, or state.Footnote 9 However, in recent years, a discourse of transformative reparations has emerged to respond to the perceived limitations of a purely corrective approach, by emphasising the need to address distributive justice, which takes into account the current needs of the population affected.Footnote 10 For Anna Reading, such a transformative justice approach to reparations ‘is more usefully conceived as an assemblage of acts and processes across space and time that includes seeking transformations of material and nonmaterial reality that might be understood as emotional, spiritual, and affective capital along with transformations of material inequalities and economic capital’.Footnote 11 Such an approach suggests the potential for reparations to address structural injustices, within current distributions of wealth and resources and symbolic, non-material resources but remains to date without significant practice.
Third, reparations can serve or hinder epistemic justice. The process of acknowledging harm and the victim’s status as rights holder may make a significant contribution to reparative epistemic justice.Footnote 12 Providing reparations may enable survivors to express their experiences of harm, how it affected their lives, and have that lived experience officially believed and acknowledged, vindicating their truth about what happened. However, a failure of acknowledgement and recognition, a lack of engagement with the voices and preferences of victim-survivors, or a lack of clearly communicated and agreed meaning regarding reparations may compound existing epistemic injustices.
Fourth, and relatedly, reparations can also be understood as an ontological form of power. Claire Moon suggests that reparations can ‘regulate the range of political and historical meanings with which the crimes of the past are endowed and through which they are interpreted and acted upon’.Footnote 13 Reparations may contribute to the recognition of victim-survivors as rights holders, as those to whom duties to repair are owed by state and church institutions and other non-state actors. However, such ontological power likely remains limited by the configuration of victim-survivors as rights holders within a liberal democratic framework, which is problematic in settler colonial contexts, as discussed below.
8.3 Reparations and Historical-Structural Injustices
In the case of gross violations of human rights, full healing, restitution, or compensation may be impossible: ‘Nothing will restore a victim to the status quo ante after years of torture, sexual abuse, or illegal detention’, or after the loss of a loved one.Footnote 14 In the absence of further meaning, compensation for human rights violations may function as ‘hush money’ or suggest a market value only for the experience of harm and loss.Footnote 15 In addition, addressing non-recent violence and/or violence beyond lived experience directly warrants a distinctive response, owing to the longer lapse of time between the harm experienced and attempts to redress it and the likelihood such reparations may extend to descendants of those originally harmed.
There are divergent views about the ability of reparations to achieve this. John Torpey finds that reparations are either commemorative: ‘backward looking, not necessarily connected to current economic disadvantage’… or anti-systemic in nature: ‘rooted in claims that a past system of domination (colonialism, apartheid, slavery, segregation) was unjust and is the cause of continuing economic disadvantage suffered by those who lived under these systems or their descendants’.Footnote 16 Torpey suggests that these two types of reparation should be regarded as the extremes on a spectrum.Footnote 17 Similarly, Janna Thompson distinguishes between synchronic and diachronic theories of reparations.Footnote 18 Synchronic theories refer to relationships between contemporaries, typically applicable to reparations in mainstream transitional justice, which concern relatively recent armed conflicts or authoritarian regimes. Reparations for historical-structural injustice are criticised when thought of in this way, where the original victim of injustice has perished.Footnote 19 Brophy notes that the highest profile argument against reparations in the United States is that ‘the people currently asked to pay had nothing to do with the injustices of the past’.Footnote 20
In contrast, diachronic theories refer to obligations incurred by past generations. For Thompson, as societies represent inter-generational communities, current members of these communities may claim reparations for past injustices, such as slavery and taking the lands of Indigenous peoples, committed against their ancestors.Footnote 21 On this account, reparations are not designed to primarily remedy the original wrongdoing per se but the loss of inheritance that acts negatively upon the link between generations. It remains a moral and political choice of current state and churches to accept the responsibility to provide reparations,Footnote 22 for harms where the original victims are now deceased, but their descendants are marginalised and harmed, based on the endurance and reproduction of historical-structural injustices.
8.3.1 Reparation Schemes Considered
Of the forty-one reparation schemes considered in this book in Appendix 2, the majority are commemorative and synchronic and fail to address the structural conditions that framed and created the context for specific abuses, or the structural conditions that have persisted or been reproduced after non-recent harms. A majority of the schemes provided to victim-survivors of historical abuse are ex gratia, arising as a gift, without admission of responsibility from the states or churches who administer the schemes. A second category of schemes represents the outcomes of the settlement of litigation. These range from private settlements with exclusively financial outcomes, to broad, complex, and public settlements, such as the Indian Residential Schools Settlement Agreement (IRSSA) in Canada.
In Ireland, the redress schemes have all been ex gratia and designed and administered by government. The Residential Institutions Redress Board (RIRB) scheme was the result of survivor political and legal pressure and ran concurrently with the Commission to Inquire into Child Abuse (CICA) investigation, discussed in Chapter 6. It is the only scheme to have a financial contribution (of 11 per cent of the total cost) from churches, which were indemnified from any litigation for their contribution.Footnote 23 The Magdalene Restorative Justice Scheme arose as a response to the state’s McAleese commission report.Footnote 24 A redress scheme for survivors of mother and baby homes has been proposed by government in 2022 and is progressing through parliament at the time of writing. There is no aggregated data on the settlement of claims against state or religious orders regarding historical abuses.
In Australia, redress schemes have been mandated by state or national governments, with varying levels of survivor advocacy and engagement. The 2018 National Redress Scheme, arising from a recommendation of the Royal Commission into Institutional Responses to Child Abuse, involved negotiations between state and federal governments and non-government institutions in all Australian jurisdictions to join the scheme, including the Catholic Church, Anglican Church, Salvation Army, Scouts Australia, YMCA Australia, the Uniting Church, and the Lutheran Church of Australia.Footnote 25 In 2021, the Australian government authorised national redress for the Stolen Generations, which will build on existing redress schemes from two Australian states. In addition, aggregated data gathered by the Royal Commission on Institutional Responses to Child Abuse reveals that over 3,000 claims of child sexual abuse against religious orders were resolved between 1995 and 2015. Catholic Church authorities made total payments of $268 million to settle claims of child sexual abuse between 1 January 1980 and 28 February 2015.Footnote 26 Daly and Davis note the rarity and value of this data to compare validation rates and monetary payments between civil litigation and redress schemes.Footnote 27 In addition, successive cases and legislation purported to enable Indigenous people to claim limited land rights where traditional ownership could be proven, discussed in Chapter 7.
In contrast, Canada’s reparations processes for historical abuse have been driven by litigation and facilitated by the ability of some groups of victim-survivors to leverage the class-action lawsuit mechanism. The highest profile and heavily used scheme relates to the IRSSA, established in 2006, as part of a settlement agreement of over 7,000 legal claims against the federal government and a number of churches. A second large settlement agreement in 2018 relates to the ‘Sixties Scoop’ of Indigenous children to foster care and adoption. Several other schemes result from class actions and concern abuse in closed institutions. In Canada, limited published data regarding the settlement of clerical abuse cases in non-residential settings makes a holistic evaluation challenging. In contrast to Australia, a Specific Claims Tribunal was established in 2008 to assess monetary damage claims made by a First Nation against the Crown regarding the administration of land and other First Nation assets. To date, CAN$ 8.8 billion has been paid out in 587 settlements.Footnote 28
In the United Kingdom, a number of avenues of judicial reparation are available for victims of criminal harm. In England and Wales, victim-survivors can obtain reparation through awards of compensation by the criminal courts or by the Criminal Injuries Compensation Authority (CICA). However, the ongoing IICSA inquiry revealed that only around 0.02 per cent of criminal compensation orders relate to child sexual abuse.Footnote 29 In addition, a compilation of settlements against the English Catholic Church since ‘records allow’ to 2020 reveals that there have been 439 child sex abuse allegations against dioceses and forty-nine claims against religious orders.Footnote 30 On available data between 2003 and 2018, the Church of England addressed 217 claims for child abuse.Footnote 31 In addition, governments in Jersey, Northern Ireland, and Scotland have provided for reparations after and alongside public inquiries into institutional abuse. No aggregated settlement data is available in these jurisdictions.
In the United States, there are no national reparation schemes regarding racial injustice and limited and unsatisfactory schemes for Native peoples. Aggregated data on the settlement of clerical sexual abuse cases against the Catholic Church reveal that 5,679 survivors received a total of approximately $2.5 billion, with an average settlement of $268,466.Footnote 32 The United States was the first to establish a formal process for the hearing of Native American land claimsFootnote 33 but could only order monetary redress, not the return of Native lands.Footnote 34
This universe of reparation schemes and settlement agreements demonstrates the significant cost of redress to date. However, both the experience of these schemes and their limitations have been a source of challenge and frustration for victim-survivors and inhibit their contribution to any transitional justice for historical-structural injustices.
8.4 Assessing Reparation Schemes and Historical-Structural Injustices
Assessing these reparation schemes is challenging in a context of limited publicly available reports on their processes and outcomes for survivors.Footnote 35 The full scope may be difficult to calculate, particularly in private settlements with church institutions, which do not disclose comprehensive figures.Footnote 36 In Ireland, a legal prohibition on applicants discussing engagement with the statutory RIRB has made assessment of its work highly challenging.Footnote 37 With these caveats in place, reparation schemes can be assessed across the four dimensions of power.
8.4.1 Dimension 1: Agency
Reparations are a significant site of engagement between victim-survivors and states and churches, negotiating the establishment, cost, and procedure of any schemes. The record of such participation and ownership is mixed at best. Kathleen Daly notes that a majority of Canadian redress schemes and settlements involve negotiation with victim-survivors or, at least, their legal representatives, while four Canadian agreements only involved negotiations between legal representatives, with little or no victim participation.Footnote 38 In some instances, survivors were critical of the length of settlement proceedings that exhausted survivors and wasted funds of the defendants that could have helped survivors.Footnote 39 In the Jericho Hill, and Nova Scotia redress schemes, existing accounts from survivors were negative of the redress experience.Footnote 40 In contrast, the redress schemes for Grandview and St John’s and St Joseph’s were the product of significant participation from victim-survivor advocacy groups, leading to enhanced trust and reconciliation and a high validation and acceptance of claims by victim-survivors.Footnote 41 Both schemes allowed victims the opportunity to describe their own experiences and explain the consequences on their lives.Footnote 42 However, despite positive reviews from many victim-survivors, Daly noted that the language used for the Grandview redress scheme of ‘healing’ was misleading and premature.Footnote 43
Within the Canadian cases, Daly notes the experiences of participation for victim-survivors, ‘depend on the bargaining power of the advocacy group and the size and strength of the legal team’.Footnote 44 The most notable example was the IRSSA, which was the result of extensive engagement with victim-survivors, advocates, and their legal representatives.Footnote 45 Reimer et al found that 31 per cent of survivors surveyed were positive about their experiences with the common experience payment component of IRSSA, with most saying reparations were pragmatically useful in providing financial assistance but went on to suggest that ‘the satisfaction derived from the CEP money [Common Experience Payment] was for the most part temporary’.Footnote 46
In contrast, a majority of Australian redress schemes are stipulated by government, with limited evidence of victim participation or consultation.Footnote 47 In contrast, the recent National Redress Scheme resulted from significant engagement by victim-survivors with the Royal Commission on child abuse that recommended a national approach and with subsequent government negotiations.Footnote 48 However, a recent review of this scheme found it fundamentally unsatisfactory despite this engagement, noting: ‘The Scheme’s enabling legislation states, “Redress under the Scheme should be survivor focussed.” It currently is not … The feedback of survivors has been consistent about the need for change.’Footnote 49
In the United Kingdom, a 2019 review of criminal compensation schemes by the UK Victims’ Commission was highly critical of its operation, finding it ‘extremely traumatic for victims who have to repeat details of the crime numerous times’.Footnote 50 In 2019, the UK IICSA reported that ‘none of the avenues for redress which we have examined – civil justice, criminal compensation (CCOs and CICA awards) or support services – is always able to adequately provide the remedies which are sought as accountability and reparations for victims and survivors of sexual abuse’.Footnote 51 IICSA’s analysis indicated a number of limitations to even bespoke reparation schemes: acknowledgement and apology may not be feasible where offending individuals or institutions no longer exist or do not want to engage with a redress process;Footnote 52 a redress scheme may not afford victim-survivors a ‘day in court’, which may be seen as beneficial; a common experience or tariff approach may seem limited or impersonal.Footnote 53 In addition, if the reparation scheme is not funded by the responsible institution, it bears little difference to existing statutory schemes and does not communicate any sense of accountability for the responsible institution.Footnote 54 The Northern Irish and Scottish redress schemes were the result of extensive lobbying and negotiation by victim-survivors.Footnote 55
The RIRB and the Magdalene Laundries redress scheme in Ireland were the result of advocacy from victim-survivor organisations, but the implementation of the Magdalene scheme in legislation and policy resulted in the weakening of many of the benefits first proposed.Footnote 56 The Magdalene Scheme was subsequently found by the Ombudsman to have been maladministered.Footnote 57 In 2019 consultations with government, many survivors described their experiences of the RIRB process as adversarial, difficult, traumatic, and negative while Caranua was described as bureaucratic and unnecessarily unwieldy.Footnote 58 Sinead Pembroke found during her research on CICA and RIRB that, ‘the majority of survivors that were interviewed, felt the inquiry and redress process triggered feelings of shame and stigma in relation to their time in the institution’.Footnote 59 In addition, many participants also felt that ‘their solicitor had benefitted financially from their personal trauma’.Footnote 60 Fionna Fox and AnneMarie Crean note: ‘Victims report that the Redress Board was adversarial, confrontational and often times antagonistic, particularly when their claims of abuse were denied by the respective Religious Order.’Footnote 61
In the United States, while Congress hoped the Indian Claims Commission would be a means of avoiding litigation, it in fact adopted the culture and practices of the courts, and its hearings became long adversarial affairs.Footnote 62 Jennifer Balboni and Donna Bishop note that in Boston in the United States, clerical sexual abuse survivors ‘detested’ the sense that they were in competition with other survivors for a fixed pot of money, which was awarded based on a ranking of who was most ‘damaged’.Footnote 63
The majority of existing schemes consist of financial payments to victim-survivors. In a majority of cases, victim-survivors who engaged with a reparation scheme were obliged to waive rights to sue government or church entities for similar claims of abuse.Footnote 64 This requirement is typically intended to incentivise participation in the scheme and avoid double compensation. Disappointment with the amount received is a common finding across several schemes.Footnote 65 Survivors were unhappy when the Western Australian government reduced the maximum payment under its Redress WA scheme from $80,000 to $45,000, due to a larger than expected number of applicants.Footnote 66 In Ireland, Enright and Ring note that although the RIRB scheme was announced as being intended to provide compensation roughly equivalent to civil litigation, ‘the average payment was roughly half that made in successful civil cases against religious orders’.Footnote 67
In addition to financial payments, several schemes provided access to counselling or reclaiming medical, educational, or legal expenses.Footnote 68 Several schemes were also accompanied by apologies, addressed separately in Chapter 9. Several of the more ambitious schemes also contained elements of memorialisation and museums, regrettably beyond the scope of this book. Some schemes address reparations for cultural property, such as the 1990 US Native American Graves Protection and Repatriation Act (NAGPRA).Footnote 69 In Australia, some reparation packages do not have financial payments to survivors but instead focus on access to services and other benefits. For Forgotten Australians, one of the principal forms of redress in this period was the establishment of Find & Connect Support Services in 2010. It provides information on family tracing, personal records, counselling, and other support for all those placed in Australian orphanages, children’s homes, and other institutions. The website was developed by ‘a team of historians, archivists, and social workers’.Footnote 70 A 2014 evaluation of the service found it ‘demonstrated considerable progress in meeting the needs of the Forgotten Australians and Former Child Migrants who are using their services’, though noting some regional and institutional variation in access to records.Footnote 71
Existing empirical and anecdotal evidence suggests that while victim-survivor empowerment may be experienced in advocating and applying for reparations, the experience of satisfaction or benefit from such interactions may be fleeting. Daly also notes that participation can be both a justice interest and an emotional burden to survivors: ‘Participation itself can create emotional turmoil and dredge up bad memories. Complex processes and delays compound the problem.’Footnote 72 As a result, while survivor participation in advocacy design and implementation of reparation schemes may offer an episodic experience of empowerment, without more it is unlikely to change the structural distribution of power or the manner in which knowledge is shared across power in state or church institutions. In doing so, participation may also cause significant distress to survivors. Schemes, such as the RIRB and Magdalene schemes in Ireland, have proved largely unsatisfactory from survivor perspectives. Although several schemes combine financial payments with access to health services or information tracing, further research is needed to assess whether and how these schemes contributed to improving outcomes for survivors.
8.4.2 Dimension 2: Structure of Reparations
Existing reparation schemes largely operate within, rather than change existing legal and political structures of power. First, victim-survivor participation with these schemes is likely to intersect with the structural feature of the expertise (or lack thereof) of state and church officials who will negotiate, design, and implement reparation schemes and who, as Stephen Winter notes, have the advantage of being ‘repeat players’, including ‘the capacity to deploy long-term strategies that develop favourable precedents and rules. Whereas survivors usually participate in only one case (their own), the state employs experts who conduct hundreds of cases, enabling those officials to develop personal relationships with adjudicators, cultivate a reputation for credibility, and learn from experience.’Footnote 73
Second, no national reparation scheme has attempted to be comprehensive, and instead many schemes are received with victim-survivor unhappiness at perceived limitations in the completeness, scope, and comprehensiveness of reparation schemes. Completeness refers to the ‘ability of a programme to reach every victim, that is, turn every victim into a beneficiary’.Footnote 74 In some instances, the geographical scope is narrow, excluding some victims in the state. In the absence of nationwide reparation schemes in the United States regarding racial violence, several state- and city-level reparation initiatives have emerged.Footnote 75 Similarly, some states in Australia provided reparations for the Stolen Generations, with the national government only doing so in 2021. Narrow scope can occur even in schemes related to closed institutions nationwide. The Irish Magdalene Laundries scheme also initially failed to include all relevant institutions associated with Magdalene Laundries.Footnote 76 In making such determinations of scope, Claire McGettrick et al emphasise how the state and church sought to retain power and control of the process of survivor applications, with the relevant religious order ‘verifying’ a survivors’ ‘duration of stay’.Footnote 77 Other criticisms relate to the comprehensiveness of the schemes, which refers to the types of crime or harm that reparations seek to redress.Footnote 78 The majority of reparation schemes for historical abuse relate to child sexual abuse. This reflects the focus both of inquiries and of accountability mechanisms discussed in Chapters 6 and 7. This can be seen in the Australia National Redress Scheme, limited to sexual abuse, or in the IRSSA, which excluded violations of Indigenous cultural rights. The Magdalene Laundries scheme only provided redress for the duration of stay in these institutions and not for forced labour or any other human rights violations.Footnote 79
Even the broadest schemes do not claim to address the full scope of historical systems of harm and oppression, such as slavery, settler colonialism, or patriarchal power structures. Individualised schemes are important to recognise the lived experience of victim-survivors of particular harms. However, it is also significant to frame those individualised experiences as part of larger patterns of harm, particularly if reproduced over time as historical-structural injustices. Catherine Lu argues, ‘In cases where structural injustice enables widespread, coordinated, legalized, and normalized individual, collective, or corporate wrongdoing … a narrow account of reparation that aims to settle accounts only between the particular agents involved is no longer appropriate for determining the field of responsible agents for victim reparations.’Footnote 80
There is some evidence of the potential for reparations to contribute in this way. Anti-systemic schemes begin by providing compensation for detention within an institutional context that was legal at the time it took place, which may offer flat reparation per year institutionalised, and/or additional reparation for specific harms alleged, such as physical and sexual abuse or neglect.Footnote 81 Daly is in favour of this approach: ‘by linking money to time spent in an institution, the amount may better symbolize claimants’ realities of institutional life than a tort logic of “pain and suffering”, which is tied to incidents of abuse.’Footnote 82 The provision of reparation for detention within an institutional setting that was legal at the time it took place demonstrates the ability of states and churches to revisit historical contexts and recognise moral and political wrongdoing, rather than rely merely on the settlement of legal claims alone. This opens up the potential for reparations to be provided for other historical contexts outside institutional settings, including to descendants.
Providing reparations for historical-structural injustices, such as the legacy of slavery and Jim Crow in the United States, will require extending eligibility for reparations to the descendants of those who suffered historical harm as well as those who suffer contemporary forms of harm. Descendants may claim eligibility by arguing either that the historical injustice has enduring effects in the present or that as heirs to original victims they are entitled to remedy.Footnote 83 Evans and Wilkins note that these arguments remain challenging, ‘because the exact influence of specific past wrongs upon specific present conditions is difficult to determine’.Footnote 84 However, of existing schemes, eligible relatives or estates of deceased victims/survivors were able to apply for and/or receive payment in four schemes in limited circumstances, including the Irish RIRB scheme and Canadian Residential Schools scheme. Other schemes in Western Australia and Jersey explicitly excluded descendants. Other schemes, such as the Scottish Redress Scheme, have recognised the need for priority groups within the pool of eligible applicants, typically those of advanced age or subject to life-threatening or terminal illnesses. As a result, it remains possible to construct a reparations scheme with an inter-generational scope, where there is sufficient political will to support this. The problem is political, not legal, and reflects the limits of law’s ability to change culture and power structures alone. Interrogating the critiques of the structure and limits of existing schemes reveals their formal elements are capable of adaption to address historical-structural injustices in a more direct and comprehensive manner.
8.4.3 Epistemic Justice and Reparations
Reparations are often delivered through administrative, rather than litigation-based processes, claimed to be more efficient and less traumatic for survivors than litigation.Footnote 85 However, the existing cases studied here challenge that assumption. Limited survivor voice and epistemic justice in these schemes compound their direct and structural limitations. In the cases of private settlements, it is impossible to assess whether any epistemic justice is achieved for survivors or indeed the broader emotional experience for survivors. The lack of transparency in church settlements of clerical sexual abuse cases makes it difficult for survivors to compare settlements and share experiences of engaging with church authorities and lawyers and for such settlements to have any public communicative value, even if individual victim-survivors receive private apologies or appropriate processes.
Of government-mandated schemes, only some provided the opportunity for oral hearings, with others relying on the submission of documents or application forms by survivors. Daly also notes that the larger the pool of potential claimants, the less likelihood of oral hearings or provision of benefits and services beyond financial compensation.Footnote 86 Regarding the Canadian IRSSA, there was both a flat CEP and an individualised Independent Assessment Process. In evaluating the CEP, Reimer et al noted that a third of those in their sample ‘felt they were not believed in their first application’.Footnote 87 Fifteen per cent recognised reparations as symbolically important as a form of acknowledgement and recognition of wrongdoing.Footnote 88 However, Reimer et al also note engagement with this redress process was re-traumatising and distressing for some and was associated with a rise in ‘accidental deaths, suicides, and homicides’, which contributed to a ‘general demoralisation’ in some communities.Footnote 89 Other victim-survivors viewed the payments as inadequate or as hush money.Footnote 90 Participants generally agreed that the compensation process seemed ‘inconsistent, leaving them at the mercy of an outside agency in control of yet another aspect of their lives’.Footnote 91 In Jennifer Matsunaga’s empirical research, survivors criticised the CEP process as both faceless and requiring them to prove their presence in a residential school, despite a lack of ease in retrieving state and church records.Footnote 92 This research indicates the limits of reparations as a site of epistemic justice, with one government official stating: ‘many application forms would come in covered in writing and sometimes there would be pictures and we just didn’t know what to do with all that extra information’.Footnote 93 Negative victim-survivor experiences were reported regarding the redress scheme for the Nova Scotia Institutions, concluding claimants were ‘presumed to be guilty of fraud and not treated with respect’.Footnote 94 Subsequent interviews of victim-survivors describe negative experiences of feeling disrespected and not believed.Footnote 95
Regarding Irish redress schemes, Sinead Pembroke notes: ‘the redress scheme application procedure itself (writing a detailed statement, and an assessment by a psychologist in order to verify their trauma), resulted in psychological wounds being opened up after years of consignment to the deepest reaches of the mind. This had a negative effect on some survivors’ personal lives, and resulted in marital breakdowns.’Footnote 96 AnneMarie Crean and Fionna Fox write, ‘The Redress Board in effect became another forum where once again the balance of power was unfairly tilted against the victim.’Footnote 97 In particular, they emphasise that ‘victims report a lack of understanding of their individual circumstances coupled with a failure by the Board to understand and empathise with their past experiences of abuse and ongoing issues as a result’.Footnote 98 Máiréad Enright and Sinéad Ring frame such experiences as testimonial injustices, ‘where victim-survivors are prevented from acknowledgement as a giver of knowledge and as an informant’, noting it a particular injustice arising where it relates to the survivors’ construction of their own childhood.Footnote 99 They note the state’s broader responses to historical abuses constitute a form of epistemic injustice: ‘Redress schemes have financialized the wrongs done to victim-survivors and eclipsed other dimensions of their claims. Victim-survivors feel that the injuries they suffered are not heard and recognized as wrongs.’Footnote 100 The Magdalene Laundries scheme was criticised by the state’s own Ombudsman for denying the evidential value of women’s own testimony: ‘There was an overreliance on the records of the congregations and it is not apparent what weight if any was afforded to the testimony of the women and/or their relatives.’Footnote 101 These forms of epistemic injustice confirm that administering reparations through less complex means is no guarantee of avoiding distress to survivors. Instead, the limitations of the approaches adopted across jurisdictions demonstrate the real risk of re-traumatisation for survivors seeking reparations. The lack of capacity of those administering redress schemes to hear, accept, and acknowledge the experiences and voices of victim-survivors confirms reparations as a major site of epistemic injustice in dealing with the past. In attempting to simplify processes, whether through documentary applications or individualised assessments, many redress schemes demonstrate the inability to address the needs of victim-survivors and caution expectations for reparations for historical-structural abuses.
8.4.4 Ontology and Reparations
In some instances, particularly the settlement of class actions, reparations may represent the only mechanism for addressing the past and may by design fail to capture elements of truth seeking, accountability, or apology discussed in other chapters. As a result, reparations or settlements may be the sole contribution to the development of an ontological framing of victim-survivors. In the absence of an alternative narrative communicated around the redress, Daly concluded that survivors ‘equated money with their injuries, suffering, and value as a person’, which inevitably was re-traumatising.Footnote 102 Many survivors ‘objected to the use of categories to define and rate their childhood abuse experiences’, one saying ‘it’s like they were labelling beef’.Footnote 103 Negative experiences of Canadian redress schemes are united in the view that ‘the payment was interpreted as monetary exchange for abuse or injuries suffered, and a survivor’s “worth” was not recognized’.Footnote 104
The absence of communicative messages may also be significant. For instance, the Irish government has failed to memorialise either context of the industrial schools or Magdalene Laundries, re-emphasising the financial dimensions of redress in both instances and rendering redress something provided to individual applicants alone. Instead, in the absence of any mention of rights or responsibility, the meaning of the scheme becomes nebulous. McGettrick et al write regarding the Magdalene scheme: ‘The government’s designation of the Scheme as “ex gratia” effectively functioned as a declaration that neither State departments not religious congregations were to be treated as wrongdoers who might be inclined to treat survivors with a lack of respect.’Footnote 105 The ex gratia approach excludes the possibility of recognising survivors as rights holders and the state and church as duty bearers.
Sunga argues that ‘unless there is a clear articulation that a monetary award does not signify a market transaction, money will tend to indicate some form of exchange for abuse injuries.’Footnote 106 The consequences are that money payments may leave survivors to feel that ‘their worth has not been understood or acknowledged by the party responsible for the abuse’.Footnote 107 For Sunga, an alternative and explicit symbolism is necessary.Footnote 108 Sarah Pritchard suggests the potential for such money to communicate the vindication of survivor rights and the responsibility of offending actors.Footnote 109 Daly notes one common critique emerges that the opportunity for reparations to communicate a clear symbolic message was not taken: ‘Most survivors did not see the payment as symbolic, as recognition for injury and solace for pain. Instead, they equated the amount received in an individualized scheme to the level of abuse and injury they had experienced and to their “worth”. They did not understand why others received more money than they did.’Footnote 110 As a result, Daly concludes the word ‘compensation’ should be removed from redress schemes, which should avoid any link to a market value meaning and make explicit links to other non-monetary forms of redress or mechanisms to address the past.Footnote 111
An emphasis on symbolism challenges the dominant ex gratia approach to reparations for historical abuses, based more on the benevolence of the provider of the scheme than as a matter of recognition of rights. As a result, the symbolism of reparations involves questions of the epistemic justice and ontological power involved in reparations – what are reparations understood to symbolise, who gets to be heard on this issue, and how does it relate to the broader meaning and knowledge in society? The role and participation of victim-survivors will be key in legitimating reparations in their content, processes, and potential symbolism. Lisa LaPlante argues that ‘the “positionality” of victims will influence what they perceive to be necessary to feel repaired’ and 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’.Footnote 112
In the case of reparations in settler colonial contexts, existing schemes remain predicated on existing settler authority, structures, and social ontology, and involve ‘inserting the Indigenous person into a reaffirmed colonial universe, where practices of economic, symbolic, and linguistic domination sit unchallenged’.Footnote 113 Rebecca Tsosie and others suggest that reparations for Indigenous peoples involve asserting claims for recognition of cultural and political rights as separate nations.Footnote 114 Regarding Indigenous land claims in Australia, Aileen Moreton-Robinson argues that ‘Indigenous ontological relations to land are incommensurate with those developed through capitalism, and they continue to unsettle white Australia’s sense of belonging, which is inextricably tied to white possession and power configured through the logic of capital and profound individual attachment’.Footnote 115 Recognition of these dimensions of Indigenous claims challenges a synchronic or commemorative account of reparations and requires reparations to be part of a broader dismantling of systems of assimilation, rather than part of them. To date, existing reparations processes neglect this dimension.
8.5 Transforming Reparations for Historical-Structural Injustices: The Impact on National Myths
The existing practice of reparations struggles to capture the distinctive circumstances of historical-structural injustices and continues a pattern of ambivalent success for reparation programmes familiar to mainstream transitional justice. Instead, the intention of reparations for historical-structural injustices should be not to undo or repair the harms done but to change the meaning of those harms by contributing to alleviating the material consequences of the harms today. In that way, reparations can contribute to either affirming or challenging the national and religious myths that undergird historical-structural injustices in each context explored in this book.
The design, process, and outcomes of reparations in Ireland miss the opportunity to communicate to victim-survivors and to society more broadly the acknowledgement of state and church responsibility, the status of victim-survivors as rights holders, and the admission of the inadequacy of the redress offered, despite significant expense. The processes of Irish redress schemes have been criticised by international human rights bodies and national civil society organisations.Footnote 116 Irish redress is inarticulate about its meaning and risks forming a type of state shame that both acknowledges and recovers state authority and control over survivors’ lives and interests.Footnote 117 In the absence of clearly communicated public narratives around these schemes, the Irish approach results in amplifying the risk that the money values and the distressing processes of reparations are all that are remembered from this attempt to address the past. To transform the Irish practice of reparations requires at a minimum changing survivor and public access to state and church archives regarding historical-structural abuses, currently highly restricted for survivors.Footnote 118
The Australian experience shows growing appreciation of the need for redress as a response to historical abuses. The role of information and access to records is particularly prominent in Australia as an alternative to non-financial forms of reparation. However, even the most ambitious schemes, such as the National Redress Scheme for child sexual abuse, reflect a divergence between a willingness to offer reparation to those who have experienced definable and closed categories of harm and resistance to the idea of transformative approaches to reparations that would involve more profound and existential public debates about justice for colonisation and harms to First Nations peoples.
In Canada, the IRSSA represents the most ambitious and complex reparations scheme regarding historical abuses completed to date. While its approach has much to commend it, its scope reveals the enormity of the challenges facing reparations for entire systems of settler colonisation, of which residential schools and closed institutions form only a part. It is possible to suggest that, although reflecting a significant legal victory for survivors, and significant cost to state and church institutions, the redress scheme may not disrupt a settler colonial or assimilationist ontology. Its failure to incorporate Indigenous forms of knowledge suggests the potential continuation of the peaceful settler Canadian myth.
In addition to existing settlement of child abuse cases in the United States, calls for reparations regarding slavery in the United States have a long heritage. The fundamental challenge to such proposals is the implications of what reparations would mean for the national US political self-image and national myth.Footnote 119 There were historical, unsuccessful attempts to provide reparations for slavery, intending to provide each family of ex-slaves ‘not more than forty acres of tillable land’.Footnote 120 Instead, Congress enacted the Southern Homestead Act in 1866, which provided eight-acre plots in five Southern states for former slaves to purchase, requiring capital for such purchases and not functioning effectively as reparation, and was in any event repealed by 1876.Footnote 121 Jeffrey Kerr-Ritchie notes the ongoing resonance of forty acres: ‘By the 1930s, “forty acres” had become a collective memory among older generations of former slaves, an indication of the failure of the federal government to fulfill its promise to make emancipation mean something tangible, material, and longlasting.’Footnote 122 The idea of forty acres thus moved from a synchronic and diachronic conception of reparations over time.
Reparations continue to be advocated for regarding slavery, racism, and racial violence into the present day,Footnote 123 but with significant focus on reparations for slavery and a lessened focus on reparations for lynching and other acts of racial violence within living memory.Footnote 124 In 1969, the civil rights leader James Forman presented the Black Manifesto to American churches, demanding that they pay blacks $500 million in reparations.Footnote 125 Similar demands for reparations were made in the twentieth century by groups such as the National Coalition of Blacks for Reparations in America, the Black Radical Congress, Student Nonviolent Coordinating Committee, the Black Panthers, and the Black Economic Development Conference.Footnote 126 In 1989, Congressman John Conyers Jr. (D-MI) introduced the Commission to Study Reparations Proposals for African Americans Act and has consistently reintroduced the bill in subsequent years as House Resolution 40. In 2021, the resolution cleared the US House Committee on the Judiciary and at the time of writing was eligible for a full vote.
Thomas Craemer estimates the potential cost of slavery reparations by establishing ‘the present value of U.S. slave labor in 2009 dollars to range from $5.9 to $14.2 trillion’.Footnote 127 In his view, the likelihood of such reparations depends less on legal process than on sufficient political will.Footnote 128 That political will, in turn, awaits a time when ‘successors or descendants of the perpetrating side openly acknowledge the historical injustice’.Footnote 129 However, the debate about reparations has proven to be highly divisive.Footnote 130 A 2016 poll found that 81 per cent of whites were opposed to reparations.Footnote 131 It would seem implausible for the US federal government to shift from denial of the need to engage in truth telling or accountability mechanisms, but to move first towards a reparations model for historical abuses.Footnote 132 A gradual political process building national support for reparations may be necessary if highly challenging with an extremely partisan Congress and Senate.Footnote 133
However, Native experience of reparations in the United States suggests a need for caution were any such reparations to be established. Regarding the Indian Claims Commission, Sandra Danforth notes: ‘The idea that money could be substituted for land, not to consider the related grievances, did not accord with the meaning of the losses to the claimants … Just redress would then have been viewed as an attempt to re-orient contemporary relations so as to change patterns which continue to produce grievances among Indians.’Footnote 134
As in the United States, in the absence of meaningful national political investigation and public discourse regarding responsibility for historical abuses, it seems difficult to envisage circumstances where the British state and churches admit the need for reparations of historical-structural injustice caused by British imperialism. There is limited appetite for reparations in UK political discourse, particularly anti-systemic or diachronic reparations regarding slavery or colonialism. In 2013, the fifteen countries that constitute the Caribbean Community (CARICOM) established the CARICOM Reparations Commission (CRC), to ‘prepare the case for reparatory justice for the first peoples and African descended communities of the Caribbean whose ancestors suffered genocide, capture from Africa followed by enslavement in the Americas and racial apartheid’.Footnote 135 However, such proposals did not receive much media or political attention or support in the UK itself among politicians or church leadership.Footnote 136
Early assessments of the Northern Ireland Historical Institutional Abuse Redress Board suggest it may replicate problems similar to the Irish RIRB and other redress schemesFootnote 137. In 2018, the Scottish government accepted recommendations on the issue of financial redress/compensation for victims/survivors of abuse in care in Scotland, as a result of national consultation with victim-survivors. This redress scheme opened at the end of 2021. The scheme will operate a combined flat payment with individual experience payment.
8.6 Conclusion
Reparations can make a material and existential difference to the lives of victim-survivors and their descendants and contribute to redressing the past in a way that is symbolically and politically important for society at large. When designed to address historical abuses in specific institutional contexts, government-mandated reparation schemes can nonetheless grow to a considerable scale, as with the RIRB in Ireland or the IRSSA in Canada. Reparations seem to operate as a mechanism to enable states to respond to historical abuses, represent themselves as just and benevolent in doing so, while also serving the value of seeking to conclusively settle the financial and material dimensions of addressing past wrongdoing, thereby ultimately maintaining control and not fundamentally disrupting the social and political status quo.Footnote 138 In the settler colonial context, redress may function to reassert the dominance of the settler political and legal system over Indigenous peoples.Footnote 139 Other wrongs, notably British and American reparations for the legacy of transatlantic slavery, remain unaddressed and while expanding reparations to these contexts remains possible, existing practice cautions a thorough consideration of whether any reparations scheme would meet victim-survivors’ and descendants’ needs and expectations.
A range of approaches have been employed across the jurisdictions examined in this book. In seeking to achieve these goals of material difference and symbolic or existential difference, the process and messaging of reparations is likely to last longer than a financial award, which will be necessarily inadequate to the profound nature of the harm it seeks to remedy. At a minimum, the process of oral hearings, correspondence, and victim-survivor consultation must be respectful and take steps to credibly accept the accounts offered by victim-survivors. In particular, it seems perverse to require victim-survivors to produce information related to institutional abuse, when denial of access to archival information formed a significant basis of delaying initial investigations and transitional justice advocacy regarding historical abuse in the first instance.
In the absence of express messaging, it seems likely that victim-survivor experience with even the best designed and most expensive processes will be varied, with some finding the process and outcome inadequate or even distressing and re-traumatising. As a result, if reparations are to serve victim-survivors’ and states’ interest in settlement of claims, the process must communicate the necessary inadequacy of reparations alone.
Magdalena Zolkos argues that the desire for restitution and reparation may in fact also be a desire to suppress and overcome historical trauma, when in fact, this may be impossible in the case of ‘unrectifiable’ losses, which are not merely failures of implementation but instead mark ‘a constitutive limit, or a threshold, for politics and for law in their encounter with situations of trauma, mourning, and dispossession.’Footnote 140 Similarly, Brandon Hamber suggests reparations can be a ‘double-edged sword’ as the promise of full remedy to international standards can never be achieved, no matter how inclusive or sensitive the justice or administrative reparation process.Footnote 141 Instead, governments and perpetrators must carry on ‘continually, and perhaps endlessly, trying to make substantial, personalised and culturally relevant symbolic, material and collective reparations’.Footnote 142 On this account, transformation means not only material reparation but also an inherent and explicit communication through the reparations process and content, that nothing will ever be enough to undo the harms done – a recognition of inherent inadequacy. This approach would eschew the liberal conception of progress inherent in mainstream transitional justice and instead embrace the paradox of a moral duty to respond to an abusive past but a frank and explicit accounting for the limits in doing so. The mission statement of the Conference on Jewish Material Claims against Germany recognises this: ‘We know the horrors of the Holocaust can never be repaired and must never be forgotten.’ Both elements must be acknowledged. However, for this to be meaningful and to communicate a credible transformation of relationship between victim-survivors, society, and state and churches, the process of reparations must also offer meaningful signals of a transforming or transformed relationship through the disruption of existing power dynamics.
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