Reparations and Civil Litigation

Abstract

Jaime E. Malamud-Goti and Lucas Sebastián Grosman

Compensation of human rights abuse can be approached from two different perspectives. The first is through principles of tort law, under which the compensation of harm for human rights abuse is no different from the compensation of other, ordinary harm. The second is based on principles of administrative compensation. Under this approach, victims are defined in standardized terms in a statute that provides a relatively fixed, tabulated amount of compensation for all, which is typically smaller than judicial compensation. This chapter analyzes what circumstances justify a shift from the torts to the administrative approach to compensation and how the two approaches should relate to each other. It addresses, in particular, the issue of whether victims should have a right to choose between them in the disposition of their cases and, if so, under what conditions. It finally compares judicial to administrative compensation in relation to the goals a compensation program must pursue, and argues that even in those cases where, for the reasons discussed in the chapter, administrative compensation offers the best option, it is advisable to leave room for the use of judicial compensation as well.

The full text of this chapter appears in Pablo de Greiff, ed., The Handbook of Reparations (Oxford: Oxford University Press, 2006)