Many Jews coming from various parts of Eastern Europe found refuge in Germany, of all places, in huge “displaced-persons camps.” They made up as many Jews as had lived in the country before the war, only they were younger and unexpectedly active. While few German Jews returned to the “land of the murderers,” the new migrants took their place. This chapter tells the tale of their settlement in Germany, parallel to the building up the Federal Republic, especially under the the US military occupation. They could only observe with unease the signs of antisemitism in the new German state, and support the early acts of restitution as well as the financial agreement with Israel signed in 1952. They were also the first to demand some sort of confrontation with the Nazi past. Fritz Bauer, a Jewish jurist who fled to Denmark and later to Sweden during the war and finally returned to Germany afterwards, took it upon himself, as the Prosecutor of the State of Hessen, to organize and then serve as prosecutor in the so-called Auschwitz trials. The chapter ends with his life-story.

This chapter discusses the account of profits, disgorgement, and other forms of gain-based relief. It will consider the difference between compensation, restitution and disgorgement. It will then consider the account of profits, and the operation of bars to relief and other limiting factors.

The primary rationales of the account of profits have been identified as deterrence and prophylaxis (that is, preventing a defendant from gaining from wrongdoing). Deterrence looks not to the dispute in question, but to the future conduct of the specific defendant (specific deterrence) and the future conduct of other potential defendants (general deterrence). By stripping the defendant of her gain (or part of her gain), the defendant (and other potential defendants) will be deterred from engaging in similar conduct in the future. It is argued that the remedies discussed in this chapter have a deterrent flavour.

A remedy is specific when the plaintiff seeks to get the court to coerce the defendant into doing (or not doing) a particular thing. The word ‘coercion’ is used advisedly. The court orders the defendant to do (or not to do) the particular thing, and if the defendant refuses to comply, the court may use measures such as imprisonment, sequestration and fines to encourage compliance with its order. The two most important examples of specific relief in Australia are the decree of specific performance and the injunction. This chapter will consider specific performance, and the next chapter will consider injunctions. Specific performance relates to ordering the defendant to comply with the terms of a contract, but injunctions may be ordered across private law and beyond. Specific performance is exclusively equitable, and generally operates in relation to a common law cause of action; namely, breach of contract.

The concept of ‘remedy’ used in this chapter encompasses a court order replicating a preexisting right, not a response to civil wrongdoing. Restitutionary remedies responding to unjust enrichment differ from remedies responding to a wrong (breach of contract, tort, or equitable wrong). As noted in Ch 1, they do not fit easily into a division between the primary right and the secondary remedy. It is for this reason that the cause of action and the remedy overlap, and they are notoriously difficult to untangle. Discussions of restitutionary remedies inevitably turn into discussions of the cause of action.

The law of civil remedies has frequently been described as a ‘capstone’ private law subject. In other words, it is the culmination of a student’s knowledge of private law, and it is intended to assist all the disparate strands from previously studied private law subjects to come together.

It is for this reason that we will take a generally ‘functional’ approach to the organisation of this book, grouping remedies from across different areas according to the broad functions they perform so that parallels and contrasts can be made.

Victims’ rights, whether they take the form of a procedural right of access to justice or participation, or a substantive right to reparation, fulfil a number of important functions. Ideally, they allow victims to assert their rights, redress power imbalances manifest in violations, provide a measure of justice and furnish the victim(s) with the means to cope and rebuild their lives. They may also lead to a public acknowledgement of wrongdoing that recognises unlawful suffering, demonstrates society’s respect for, and solidarity with, the victim(s), and affirms the rule of law. In addition, victims’ rights play an important role in contributing to prevention through deterrence (punishment and/or payment of damages or other forms of reparation) and systemic changes to counter violations, such as legislative and institutional reforms. A series of open questions and challenges remain. Do the rights granted in various treaties and declarations translate into a right to reparation under international law, and, if so, does this apply in relation to all or only some particularly serious human rights violations? Who are the rights-holders and what are their entitlements? Recent developments also raise questions of coherence and effectiveness in light of the proliferation of victims’ rights in various bodies of international law.

This chapter analyses how communities of care challenge the status quo of who possesses cultural heritage; it focuses on the way in which the notion of caring for extends across the generations to claims made by the descendants of past owners, communities of origin or states and the multivocality in decision-making. Frequently the question has been asked: who owns cultural heritage? But it is more helpful to consider whether there is a reason to challenge the status quo and to analyse how decisions are made about the appropriate course of action to take. Many UK national museums have prohibitive governing statutes preventing them from acceding to repatriation requests (although these have been eased in the context of Nazi Era spoliation and some human remains). In some cases, a defensive stance is taken to challenges which represents paternalistic care.Some individual museums which have faced repatriation claims in the past for human remains or other cultural heritage objects have developed their own policies and processes in response to this which represents dialogic care.

The Afterword reflects on the peculiarities of the CCP’s politics of historical justice. Placing the results of the volume in the larger context of transitional justice research, it discusses the reasons why the policies of “bringing order out of chaos” (boluan fanzheng) generated short-term cohesion but did not result in meaningful political reconciliation. The party leadership, despite a few alternative statements by high-ranking leaders in the early 1980s, did not allow for multivocal discussions of guilt and responsibility. Instead, it attempted to pacify the populace through financial subsidies, symbolic rehabilitations, and highly selective persecutions of supposed perpetrators. The core strategy under Deng Xiaoping was to overcome the legacies of the past through a focus on economic development and the depoliticization of past conflicts. An increasingly rigid truth regime was installed and enshrined in the 1981 resolution on party history. The contradictions between lived experience and these official formulae resulted in a pronounced shift toward historical amnesia in the following decades, as the legacies of the Mao era have become increasingly incorporated into a larger narrative of national rejuvenation and regaining great power status.

The Introduction broadly contextualizes how the CCP dealt with historical injustices after Mao Zedong’s death. It provides the necessary framework for understanding the processes and practices that are further explored and examined in the following sections and chapters of the book while shedding light on how selectively applied approaches today associated with the concept of transitional justice may serve to strengthen rather than subvert authoritarian rule. It also highlights the most outstanding features of the CCP’s politics of historical justice before placing these strategies against the backdrop of recent debates on crucial paradigms of transitional justice. Specifically, it introduces two key channels (“property” and “the mechanics of rehabilitation”) through which the government and public sought to concretely redress Mao-era historical injustices and efforts to construct meaningful “truths” of these injustices (“the politics of truth” and “memory”)

The return of personal belongings has the potential to anchor the lofty rhetoric of historical justice in people’s everyday material realities. However, in the case of the Chinese government’s efforts to return belongings seized by Red Guards in the house raids of 1966 it is necessary to separate the history of restitution from the politics of history to understand how one relates to the other. This chapter analyzes the structure put in place by the Shanghai Revolutionary Committee, on orders of the Chinese Communist Party, to begin returning possessions less than a year after the house raids. By reassembling documents that have survived from this process, it shows that the scope of early restitution, which occurred when the Chinese Communist Party was still affirming the actions of the Red Guards, was far more important than has previously been assumed. In fact, the policy of restitution went through not one but two moments of transition: the first when the Cultural Revolution entered its corrective phase and the second when the post-Mao leadership declared the house raids illegal. Each moment saw an expansion of restitution informed by a shift in how the Chinese state defined entitlement and membership in the political community. It is important to avoid interpreting early restitution through the explanatory framework that emerged after Mao’s death not only because it distorts the facts and motivations of the earlier process, but also because the separation of the two allows for a better understanding of both, and in particular of how restitution became, in the end, concrete proof of what it meant to come to terms with the Cultural Revolution.

This chapter relies on official and unofficial sources that have recently been made available to examine how the Chinese Communist Party introduced methods of reparation to deal with deaths that resulted from the egregious killings that took place in Guangxi between 1967 and 1968. Newly regrouped party leadership in the early post-Mao era designed a special reparation strategy and framework that included compensation, restitution, rehabilitation, implicit state apology, and commemorative acts; of these, the government prioritized rehabilitation while marginalizing the role of material reparation, largely because of final constraints.

This contribution traces the singular significance of Walter Benjamin’s philosophy for Sebald’s literary as well as literary critical writings. It offers a discussion of Sebald’s adaptation of Benjaminian theorems and reflections, focussing in particular on the philosophy of history, conceptions of natural history, the epistemological functionalization of melancholia, and a materialist understanding of memory.

This essay considers the ways in which Sebald’s engagement with his literary predecessors expresses his aim, explored in all his major books from Nach der Natur (After Nature, 1988) to Austerlitz (2001), of understanding the historically constructed condition of ‘culture’. Beyond the impact of specific individuals on his work – from Thomas Browne to Joseph Conrad, from Thomas Bernhard to Vladimir Nabokov – the essay considers why the idea of a literary tradition was so important to Sebald’s creative project, and how his intertextual engagement with this tradition helped shape the very terms of his writing. What does it mean, we can ask of Sebald with Susan Sontag, to be ‘a European at the end of European civilization’?

This chapter discusses modification of the fluid dynamic point forces due to proximity to the wall and due to neighboring particles, where the latter focuses on the Richardson–Zaki exponent. In addition, particle collision with other particles and with walls is discussed for normal and tangential restitution. This includes effects of viscoelasticity, spin, plasticity, fluid viscosity, and adhesion for solid particles as well as deformation and wetting for fluid particles.

Chapter 8 argues that despite significant munificence to the compensation and redress schemes for historical abuses, the approach taken across a range of states misses the opportunity to transform the relationship between victim-survivors of historical abuse and the states and churches responsible for their harm. If the monetary and material dimensions of reparations are necessarily inadequate to the harms experienced, then the symbolic and communicative dimensions form a critical part of reparations as a response to historical-structural injustice. Rather than act as a form of settlement and closure of claims regarding wrongs, reparations can also serve as an example, to communicate ongoing commitments from states and churches to other aspects of transitional justice, that reflect a desire for a renewed relationship between victim-survivors.

This chapter deals with accounts of profits and other forms of gain-based relief. The rationale for accounts of profit have been said to be deterrence and prophylaxis.

The placement of reasonable fee awards in this chapter may be regarded as controversial. ‘Reasonable fee’ refers to a court-ordered monetary award reflecting what the plaintiff would have asked for to permit the defendant’s wrongdoing. They are generally awarded for intellectual property breaches, proprietary torts and breaches of negative covenants. The rationale for these awards is unclear, but Barnett and Harder have argued such awards are gain-based, so we place them in this chapter.