Apartheid Reparations: In Search of a Suitable Theoretical Foundation

Increasingly, South African civil society groups are mobilising to obtain reparations for the gross human rights violations committed during Apartheid. This movement is in line with the international trend to recognise victims and a right to reparations. Whereas the payment of reparations is not currently a priority to the South African government, Apartheid victims are still calling for reparations that recognise the harm done and the wrongs committed. Although the term 'Apartheid reparations' may not yet be a commonly encountered term in international law or in political discourse, there is growing recognition of the fact that the wrongs committed in the name of Apartheid are wrongs that can be compensated by the payment of financial reparations. However, would the payment of reparations necessarily be in the interest of justice? An aspect of the reparations debate that has not received much attention is the question of what theory of justice will fit the payment of reparations. The payment of reparations is a matter not only of international law but also a matter of morality. It is often stated that one of the purposes of remedies is to restore a 'moral balance'. As generally understood, remedies serve to rectify wrongs and to correct injustice; but, partly because many societal wrongs go unremedied and partly because wrongs can also be rectified in ways other than the payment of reparations, it can be argued that 'rectification' in itself does not sufficiently justify and explain the need for reparations. In addition, 'morality' can be too subjective, vague and relative to ground the obligation to pay reparations. In this article the 5 range of remedial theories (from 'traditional' criminal law remedies to more contemporary theories fitting the setting of transitional justice) will be examined. What follows is not a mere list of the classic remedial theories. I will critically assess whether any of these theories (or combination of theories) fits the context of Apartheid reparations. A fitting theory will be a theory that fits the purpose of and the need for the remedy. To an extent a fitting theory would also legitimise the paying of reparations (it should not be assumed that the payment of reparations is inherently good and legitimate). Such a theory should be fair and have a socially transformative effect (or as a minimum requirement not cause further division and inequality). The literature on remedial theories seems to adopt a criminal law paradigm: many scholars assume a loose analogy between criminal punishment and the payment of reparations, at least as far as the applicability of remedial theories is concerned. I will argue that the virtues or advantages of particular theories in the context of criminal law cannot be successfully transplanted to the context of rectifying state injustice. The discussion of the remedial theories will focus on the suitability of a particular theory in the context of reparation for gross human rights violations and specifically Apartheid.