|
 |
|
International Law Obligations to Provide Reparations for
Human Rights Abuses
Contents
- World history contains countless records of atrocities committed by
humans against humans. Examples this century include the holocaust of
World War II, repression and torture under Pinochet's Chile, Argentina's
'dirty war', the forced removal of Aboriginal children from their
families in Australia and widespread and systematic persecution under
the South African apartheid regime. The nations responsible have by
various processes and procedures sought to respond to these human rights
abuses in order to move on from their pasts. This article examines in
detail the responses made by Australia and South Africa to human rights
abuses emanating from the removal policies and apartheid policies
respectively.
- The response by the Australian government involved a National
Inquiry, while the South African government established a Truth and
Reconciliation Commission. These mechanisms operated within the
international law of reparations framework for victims of human rights
abuses. In accordance with this law, reparation includes all types of
redress - restitution, compensation, rehabilitation and, satisfaction
and guarantees of non-repetition and consists of material and
non-material redress.
[1]
- This article commences with a discussion on the obligations on
States under international law to provide reparations for human rights
abuses. A brief overview follows, on the responses by other nations this
century to dealing with their history of human rights abuses, namely
Germany, Chile and Argentina. We then turn to examine in some detail the
Australian Human Rights and Equal Opportunity Commission's
recommendations arising from the National Inquiry into the Separation of
Aboriginal and Torres Strait Islander Children from their Families ("the
National Inquiry")[2]
and the findings of South Africa's Truth and Reconciliation Commission
("the Commission").
[3]
- The right to reparations for wrongful acts has long been recognised
as a fundamental principle of law essential to the functioning of legal
systems. In 1961, Justice Guha Roy of India wrote:
That a wrong done to an individual must be redressed by the
offender himself or by someone else against whom the sanction of the
community may be directed is one of those timeless axioms of justice
without which social life is unthinkable.[4]
- The obligation to provide reparations for human right abuses,
especially gross violations of human rights, has more recently been
recognised under international treaty and customary law, decisions of
international bodies such as the United Nations Human Rights Committee
and Inter-American Court of Human Rights, national law and practices and
municipal courts and tribunals.[5]
- In 1989 the United Nations Sub-Commission on Prevention of
Discrimination and Protection of Minorities commissioned Professor Theo
van Boven to undertake a study concerning the right to restitution,
compensation and rehabilitation for victims of gross violations of human
rights and fundamental freedoms.[6]
A final report, including proposed basic principles and guidelines, was
submitted in 1993.[7]
A revised set of basic principles and guidelines was submitted in 1996.[8]
- The van Boven Report examined relevant existing international human
rights norms and decisions of international courts and other human
rights organs. It concluded that every state "has a duty to make
reparation in case of a breach of the obligation under international law
to respect and to ensure respect for human rights and fundamental
freedoms".[9]
Van Boven states:
In accordance with international law, States have the duty to adopt
special measures, where necessary, to permit expeditious and fully
effective reparations. Reparation shall render justice by removing or
redressing the consequences of the wrongful acts and by preventing and
deterring violations. Reparations shall be proportionate to the
gravity of the violations and the resulting damage and shall include
restitution, compensation, rehabilitation, satisfaction and guarantees
of non-repetition.[10]
- Van Boven synthesised the content of reparations to include
restitution, compensation, rehabilitation and, satisfaction and
guarantees of non-repetition.[11]
Restitution refers to measures such as restoration of liberty, family
life, citizenship, return to one's place of residence and, return of
property. These measures seek to re-establish the situation that existed
prior to the violations of human rights and humanitarian law.
[12] Compensation refers to monetary compensation for any
economically assessable damage resulting from violations of human rights
and humanitarian law.[13]
Rehabilitation includes medical and psychological care as well as legal
and social services.[14]
Satisfaction and guarantees of non-repetition includes, inter alia, an
apology (including public acknowledgment of the facts and acceptance of
responsibility) and, measures to prevent recurrence of the violations.
[15]
- States have a duty not only to respect international human rights
but also to ensure them, which may include enforcing compliance by
private persons and preventing violations. Successive governments are
bound by the responsibility incurred by previous governments for
wrongful acts committed and not redressed.[16]
- A number of significant international human rights treaties create a
general duty to make appropriate reparations for violations of human
rights. These include the International Covenant on Civil and Political
Rights[17]
International Convention on the Elimination of All Forms of Racial
Discrimination[18]
Convention on the Rights of the Child[19]
and the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment[20]
- Further, international instruments also support those specific
measures of reparation suggested by van Boven: restitution;[21]
compensation;[22]
rehabilitation;[23]
satisfaction and guarantees of non-repetition.[24]
- Finally, a basic rule of international customary law is
international responsibility. It recognises that the breach of any
international obligation by a state or organ of a state constitutes an
international tort and that the commission of any international tort
involves a corresponding duty to make reparations.[25]
- It is suggested that the duty on States to make reparations for
violations of human rights has attained the status of customary law
through continuous and consistent affirmation in the decisions of
international judicial bodies, national human rights courts and through
national and regional law and practice.
- International legal bodies such as the Human Rights Committee and
the Inter-American Commission and Inter-American Court of Human Rights
have consistently prescribed the necessary measures to be taken by
States to redress violations of human rights as:
- Investigation of the facts;
- Bringing to justice those responsible; and
- Ensuring reparation to the victims.[26]
- For example, in the Velásquez case, the Inter-American Court of
Human Rights stated: The State has a legal duty to take reasonable steps
to prevent human rights violations and to use the means at its disposal
to carry out a serious investigation of violations committed within its
jurisdiction, to identify those responsible, to impose the appropriate
punishment and to ensure the victim compensation.[27]
- Notwithstanding the body of international law relating to
reparations for human rights abuses which has developed since World War
II, many States continue to pay scant, if any, attention to it. Van
Boven comments: It is clear from the present study that only scarce or
marginal attention is given to the issue of redress and reparation to
the victims... In spite of the existence of relevant international
standards... the perspective of the victim is often overlooked. It
appears that many authorities consider this perspective a complication,
an inconvenience and a marginal phenomenon. Therefore, it cannot be
stressed enough that more systematic attention has to be given, at
national and international levels, to the implementation of the right to
reparation for victims of gross violations of human rights.[28]
- This paper aims to highlight some of the responses that have been
made by States in relation to past human rights violations and to
evaluate their effectiveness in terms of their obligations under the
international law of reparations.
- The governments of Germany, Chile and Argentina have sought to bring
about closure on events that have created national shame. This has
included the provision of reparations for victims (or, in some cases,
their families) of gross human rights violations that have been
perpetrated by the State. Here, we briefly explore these reparation
responses.
- The system of reparations introduced by the Federal Republic of
Germany for compensating victims of Nazi persecution has been stated to
be the most comprehensive to date.[29]
- After World War II, the Allied Powers issued laws restricted to
restitution of, or compensation for, identifiable property that had been
confiscated by the Nazis.[30]
Further compensation laws were enacted from 1949, culminating in 1965
with the Final Federal Compensation Law. Under this law, compensation
was payable to residents or former residents of Germany for: loss of
life, damage to limb or health, damage to liberty and damage to
professional and economic prospects.[31]
- In order to meet the claims of victims who did not live in Germany,
a number of countries concluded "global agreements" with Germany under
which they received funds for payment to individual claimants. Germany
also reached agreement with Israel to pay compensation to assist with
restitution and rehabilitation of Jewish refugees, and to assist Jewish
organisations.
- While the overall assessment of the scheme has been positive, this
compensation regime has also been criticised for favouring the element
of property compensation more than the damage to life and health. One
concentration camp survivor described the experience of claiming
compensation as follows:
The fact that I was three and a half years in concentration camps
didn't count. At that time unless you were literally disabled - such
as missing a hand - they recognised nothing. I always found it
distasteful to spend days fighting a bureaucracy that tried to tell me
that I am not entitled to that money, providing documents, writing
letters, having to prove that I was indeed worthy of compensation.
When I tried to get payment for some medical bills they wanted copies
of the bills from 1946 to 1956. I had no way of finding them so they
figured out an 'average' and offered me $200 if I waive claims against
medical money... Fighting for these things absorbs so much emotional
energy... It is bad enough that I have to live with memories, but to
have to stir them up and to also face one's persecutors. I don't have
to face Nazis any more, but I still have to deal with German
bureaucracy.[32]
- The German reparations scheme was also heavily criticised when one
group of victims was seen to have received more favourable treatment
than other victims. Under the scheme, former German public servants,
such as judges, teachers and professors, were reinstated in the
position, salary or pension group they would have reached had the
persecution not taken place. These benefits were not available to many
other victims, particularly those who did not live in Germany or who
were stateless persons. The principle of equality of rights for all
victims developed as a consequence of this failing of the German scheme.
The necessity to have central planning and legislative and
administrative machinery set up to provide reparations was also a lesson
learned from the German experience.[33]
- During the 17 years of the Pinochet regime, Chileans experienced
massive and systematic violations of their human rights. They were
subjected to arbitrary arrest, torture, killings and disappearances. In
March 1990, President Aylwin took office. Quiroga notes that,
notwithstanding the election:
Chile's transition to democracy was a negotiated one... The Armed
Forces in general held to substantive privileges which allowed them to
be a powerful voice in the political decision-making process. Firstly,
General Pinochet... remained as Commander-in-Chief of the Army...[34]
- In April 1990, Chile established the National Commission for Truth
and Reconciliation. Its emphasis was on revealing the truth about
violations of the right to life, particularly the practice of forced
disappearance and torture leading to death. This provided partial
satisfaction to the relatives of the almost 3,000 cases investigated, in
relation to their wish to know the circumstances in which their
relatives were killed.[35]
- Although narrow in scope, the commission received praise for its
work. President Aylwin publicly released the 1,800-page report in
February 1990, at which time he formally apologised to the victims and
their families on behalf of the State, and asked the army to acknowledge
its role in the violence.[36]
- However, there were 3 assassinations in the 3 weeks that followed
the release of the report, which "effectively ended public discussion of
the Rettig report".[37]
- Hayner notes that nonetheless, several of the recommendations in the
report have been implemented, including the establishment of a "National
Corporation for Reparation and Reconciliation" to follow up the
commission's work and to oversee reparations to victims. Chilean Law No.
19.123 provides for a "reparation pension", which is a monthly allowance
for the benefit of relatives of the victims, including the surviving
spouse, the mother and children under 25 years or handicapped children
of any age. Other items of compensation are medical and education
benefits.[38]
- Van Boven comments that the reparations in Chile do not cover
serious violations of human rights other than the right to life and "it
remains unclear whether and to what extent those responsible for the
crimes committed during the military dictatorship will be brought to
justice."[39]
- The Argentine military dictatorship lasted seven years, between 1976
and 1983. Coonan describes the 'Dirty War' of the Argentine military as
follows:
For the first time in the Western Hemisphere, the entire resources
of a nation were given over to systematic torture and murder... While
torture ostensibly had been introduced to elicit information from
suspected subversives, it eventually became an obsession for the
torturers themselves, and the original point of the 'dirty war' - to
create a climate of fear in which subversion would be impossible - was
superseded, for the officers who actually carried it out, by an even
more repellent purpose: the perverse exhilaration of absolute,
uncontrolled dominion over others, which became an end in itself, a
way of life. Nothing can seem out of bounds in a room where people are
deliberately made to suffer excruciating pain.[40]
- In the transition to democracy, new President Alfonsin responded to
pressure to investigate the brutality of the military regime and created
the National Commission on the Disappeared. The Commission was empowered
to collect information but it was not permitted to subpoena witnesses or
compel testimony. The task of determining responsibility for crimes was
to be left to the Argentine courts.
- The Commission's report Nunca Mas ("Never Again") documented
approximately 9,000 cases of disappearances, and became a national
bestseller.[41]
The names of over 1,300 military officers implicated in torture or
disappearances were given to the President, who chose not to publicly
disclose them. The list was however leaked to the press and published in
a weekly newspaper.[42]
- As described by Coonan, attempts to prosecute members of the
military proved to be very difficult. Responding to the threat of
military disobedience, the government passed the Punto Final Law, which
established a 60-day period after which no new charges could be brought
for crimes by State officials during the military regime. Human rights
groups responded by working "frantically" to bring charges against
several hundred military officers still on active duty.[43]
- A military uprising ensued in April 1987, which convinced Alfonsin
to end the prosecutions of officers still on active duty. In June 1987,
Alfonsin's government enacted the Due Obedience Law, which established
an irrebuttable presumption of innocence for soldiers and officers up to
a certain rank. Alfonsin's successor, Menem, in the end issued pardons
to all officers accused of human rights abuses during the military
dictatorship.[44]
Coonan notes that ultimately, "Argentina's efforts to secure truth were
far more successful than its efforts to realize justice."[45]
- On 20 October 1991, the Inter-American Commission on Human Rights,
in cases against Argentina and Uruguay, concluded that the laws in those
countries granting impunity to perpetrators of human rights were in
violation of the right to justice recognised in the American Convention
and the American Declaration of Rights and Duties of Man.[46]
- The accounts of events in the above three countries show marked
differences between them in the recognition of the rights of victims.
- The accounting by Germany for violations was in the context of the
loser of a world war carrying out the demands of the winners, and in
recognition of the scale of genocidal horror perpetrated by the Nazis,
requiring a powerful response in terms of punishment of offenders and
reparation for the victims. While the extent of the reparations has been
criticised, van Boven notes that "from an historical and legal point of
view, the compensation programme and reparations constitute a unique
operation."[47]
- The Chilean commission was restricted in scope to those cases
resulting in death. This means that a high proportion of gross
violations committed in Chile were never investigated. Provision has
been made for some compensation to relatives of the victims, however
there has been no effort to hold offenders accountable, due largely it
seems, to intimidation by the military.
- In Argentina, there is a great deal of information concerning the
workings of the past brutal dictatorship and the identity of military
offenders following the report of its commission into disappearances. In
this case however, intimidation of the new government by the military
has resulted in blanket amnesties now being in place for offenders,
through the enactment of laws and the pardoning of those already
convicted or accused. In this climate, comprehensive reparations for
victims seems unlikely.
- "States may not deprive individuals of a remedy."[48]
- Both the Chilean and Argentine case studies focus attention on the
issue of impunity. As noted above, punishment for acts constituting
violations of human rights is an obligation owed by States Parties under
several major international instruments. Further, the increasing
reference, in international tribunal decisions and human rights
treaties, to an obligation upon States to prosecute accused human rights
perpetrators indicates that such obligation is, or may be becoming, a
rule of customary international law.
- However, such obligations are not always adhered to, as exemplified
by the cases in Argentina and Chile and it has been found that a clear
nexus exists between the impunity of perpetrators and the failure to
provide just and adequate reparation to the victims and their families.[49]
Once State authorities fail to investigate the facts and establish
criminal responsibility, it becomes difficult for victims or their
relatives to seek and receive adequate compensation. As one author
notes:
In many countries, amnesties extinguishing the possibility of
criminal liability have effectively destroyed the possibility of civil
redress as well, as they render virtually impossible a potential
claimant's ability to establish facts critical to his or her claim.[50]
- In its General Comment 20 (44/92), the Human Rights Committee stated
that amnesties in relation to acts of torture:
are generally incompatible with the duty of States to investigate
such acts, to guarantee freedom from such acts within their
jurisdiction; and to ensure that they do not occur in the future.[51]
- Further, it is pertinent to note that the United Nations Working
Group on Enforced or Involuntary Disappearances has taken a strong
position against impunity because it is the "single most important
factor contributing to the phenomenon of disappearances..."[52]
- Ratner and Abrams comment that:
[t]he South African acknowledgment-for-amnesty scheme has elicited
some dramatic admissions concerning the apartheid regime's abuses, but
has also ignited a wrenching debate over whether such confessions are
worth the price of individual impunity for some unbearably awful
deeds.[53]
- It is clear from the above that awarding amnesties to perpetrators
convicted or accused of human right violations is at some level a breach
of international law obligations in treaties and in customary law to
punish those who violate those rights inherent in all persons. Van
Boven's view is that the duty to punish those responsible for atrocities
is part of the states' duty to provide an effective remedy to the
victim. He concludes that impunity for perpetrators would render the
right to reparation illusory.[54]
- Both the Australian Human Rights and Equal Opportunity Commission's
National Inquiry and South Africa's Truth and Reconciliation Commission
have enjoyed significant political, media and community focus in
Australia and South Africa respectively over the last two years. Both
inquiries dealt with unsavoury aspects in their nation's history, recent
or otherwise.
- The Australian National Inquiry investigated the systematic removal
of Aboriginal children from their families. The Truth and Reconciliation
Commission was set up to examine human rights violations that occurred
during South Africa's apartheid regime. There are strong grounds for
arguing that both inquiries were concerned with gross violations of
human rights. The systematic removal of Aboriginal children from their
families complies with van Boven's description of "gross violations" of
human rights, as it included "arbitrary and prolonged detention",
"deportation or forcible transfer of population" and "systematic
discrimination, in particular based on race..."[55]
It has also been argued that the forcible removals constituted genocide.[56]
- In relation to South Africa, there is overwhelming evidence that
during the period of apartheid, gross violations occurred in the form of
arbitrary executions, enforced disappearances, torture and cruel,
inhuman and degrading treatment and punishment, arbitrary and prolonged
detentions, and systematic racial discrimination.
- Aboriginal individuals and organisations had been active since at
least the late to mid 1980's in advocating for a national inquiry into
policies and practices which resulted in the forced removal of
Aboriginal children from their families during the first six decades of
this century.[57]
Many of these children were denied contact with their families and
culture, to be raised in government homes, religious missions and foster
homes. Many suffered severe physical and sexual abuse either by
institutional authorities and/or foster parents.[58]
- The Secretariat of the National Aboriginal and Islander Child Care
('SNAICC') resolved at its national conference in 1990 to demand a
national inquiry into the removal issue.[59]
On 4 August 1991, National Aboriginal and Islander Children's Day,
SNAICC in conjunction with high profile Aboriginal entertainers, Archie
Roach and Ruby Hunter, publicly launched a demand for an inquiry.
- Other Aboriginal organisations, including the Aboriginal Legal
Service of Western Australia (Inc.) ('ALSWA') and Link-Up (NSW), were
also vocal in their demands for a national inquiry.[60]
In association with the push for a national inquiry into removal
procedures and policies, ALSWA commenced a project to interview
Aboriginal people who had been removed from their families. ALSWA
interviewed over 600 people before it launched its first report in June
1995, Telling Our Story.[61]
By the time ALSWA completed its second report in May 1996, After the
Removal,[62]
it had collected over 700 stories.[63]
Both reports were submitted to the National Inquiry.
- Other victims of removal practices took the litigation pathway; most
notably a female plaintiff from Sydney named Joy Williams[64]
and a number of Aboriginal people from the Northern Territory.[65]
In the latter case, the drive for litigation was given impetus by a 1994
conference in Darwin, called The Going Home Conference, which brought
together Aboriginal people, principally from the Northern Territory, who
had been removed from their families. Ron Merkel, then QC, addressed the
conference. His paper, titled A Paper on Legal Options for Aborigines
"Taken" from their Families and their People[66]
and The Going Home Conference led to the establishment of a "Stolen
Generations Litigation Unit" within the Northern Australian Aboriginal
Legal Service.
- On 2 August 1995, the Commonwealth of Australia Attorney-General
Michael Lavarch commissioned the Commonwealth Human Rights and Equal
Opportunity Commission[67]
to undertake an inquiry into the past practice of forcibly removing
Indigenous children from their families. The Report of the National
Inquiry was tabled in Federal Parliament on 25 May 1997. It documented
widespread and systematic racial discrimination and gross ill-treatment
of Indigenous Australians, which had occurred as law-makers and
administrators sought to resolve "the Aboriginal problem".
- The National Inquiry found, inter alia, that the policy of forcible
removal adversely affected Aborigines across Australia in all States and
Territories. Forcible removal of Aboriginal children began as early as
the mid-nineteenth century in the eastern States of Australia and was
characterised by legislative and administrative regimes enacted and
exercised specifically for Aboriginal people. Such regimes discriminated
against them either in law or in fact. The National Inquiry found that
forcible removal resulted in:
[68]
(a) deprivation of liberty by detaining children and confining them
in institutions;[69]
(b) abolition of parental rights by taking children and by making
children wards of the Chief Protector or Aborigines Protection Board
or by assuming custody and control;[70]
(c) abuses of power in the removal process;[71]
and
(d) breach of guardianship obligations on the part of Protectors,
Protection Boards and other "carers".[72]
- The legally significant consequences of forcible removal were that
Indigenous Australians were denied the common law rights which other
Australians enjoyed,[73]
suffered violations of their human rights,[74]
and were often subjected to other forms of victimisation and
discrimination.[75]
The practice of forcible removal continued until the 1970s.[76]
- The National Inquiry further found the forcible removal of
Indigenous children from their families to be in breach of international
human rights obligations to prevent systematic racial discrimination and
genocide.[77]
Forcible removal was racially discriminatory because it was carried out
pursuant to legislation which either denied the Aborigines common law
rights on the basis of race[78]
or because the legislation, although not discriminatory in form, had the
substantive effect of discriminating against Aborigines through the
exercise and use of procedures and standards "which they could not meet
either because of their particular cultural values or because of imposed
poverty and dependence".[79]
- Genocide was found on the basis that the laws and policies promoting
the removal of Indigenous children was for the purpose, or had the
effect, of destroying the Aborigines as a racial group or their
"Indigenous culture".[80]
Under international law, these violations are attributable to the
Commonwealth.[81]
In its report, the National Inquiry noted further that such breaches
under international law amounted to "gross violation of human rights"[82]
and it recommended a system of reparations which was essentially in
conformity with those of van Boven. The proposed reparation scheme is
set out below.
Acknowledgment and Apology
- For victims of gross human rights violations, establishing the truth
about the past is a critically important measure of reparation.[83]
The National Inquiry recommended that all Australian Parliaments, State
and Territory police forces, and churches and other relevant
non-government agencies, "acknowledge the responsibility of their
predecessors for the laws, policies and practices of forcible removal"
and apologise for the wrongs committed.[84]
- The demand for acknowledgment of the truth and the delivery of an
apology has generated much community debate. The significance of such a
demand should not be underestimated. Pritchard writes "[t]he Inquiry
agreed that the first step in healing for victims of gross violations of
human rights must be an acknowledgment of the truth and the delivery of
an apology."[85]
Guarantees against repetition
- It is important to include measures to prevent such human rights
violations in the future as an aspect of reparation. Emphasis should be
placed on informing the wider Australian community about the history and
continuing effects of separation and to promote awareness of the human
rights violations suffered by Indigenous people, families and
communities as a result of separations. Recommendations made by the
National Inquiry in respect of guarantees against repetition included
school curricula and professional training to include the study of
forcible removal.[86]
- Recommendation 10 of the report argues for the Commonwealth
Government to "legislate to implement the Genocide Convention" into
domestic law.[87]
Restitution
- In respect of restitution, the returning to Australia of children
who were forcibly removed and now living overseas was identified as a
critical step in the reunification and assistance process. To facilitate
return to country, support is required for "returnees" and for the
communities receiving them. The National Inquiry made recommendations in
relation to "assistance to return to country",[88]
the fostering of Indigenous language, culture and history[89]
and the accreditation of Indigenous organisations such as Link-Up and
Aboriginal and Islander Child Care Agencies "for the purposes of
certifying descent from the Indigenous people of Australia and
acceptance as Indigenous by the Indigenous community."[90]
Reparation of a restitutive nature can also be found in the National
Inquiry's recommendation dealing with delivery of services to those
affected.[91]
Rehabilitation
- The National Inquiry agreed with van Boven's recommendation that
reparations include rehabilitation measures, such as "legal, medical,
psychological and other care services". These measures require
culturally appropriate delivery of services such as mental health and
counselling services,[92]
parenting and family support programmes.[93]
Rehabilitative measures are essential to addressing the needs of those
affected by forcible removal."
Monetary Compensation
- The awarding of monetary compensation for those removed and/or
affected by the removals received opposition from the Commonwealth
Government.[94]
In its submission to the National Inquiry, the Commonwealth Government
raised as a concern the difficulty in estimating the monetary value of
losses, on the grounds that "[t]here is no comparable area of awards of
compensation and no basis for arguing a quantum of damages from first
principles."[95]
However, Professor Graycar suggests that the Commonwealth Government's
excuses for not providing compensation to Indigenous peoples who had
been affected by removal policies are little more than a rhetorical
device.[96]
She states:
Even the most minimal familiarity with the legal frameworks used
for compensating various sorts of injuries would make it clear that
what is, or is not, compensatory at law is more a matter of political
judgment and government policy than it is a matter of any inherent
legal understanding of compensability... Perhaps the most common form
of compensation that courts deal with is the assessment of damages for
personal injuries caused by negligence, such as in the negligent
driving of a motor vehicle. Many tort scholars have pointed out that
this process is little more than, as Ison called it, a "forensic
lottery."[97]
Judges often make assessments of both economic and non-economic
losses, at common law, on a lump sum 'once and for all' basis. This of
necessity, involves speculation about a range of imponderables...[98]
- The National Inquiry's Report strongly argued and recommended:[99]
[t]hat monetary compensation be provided to people affected by
forcible removal under the following heads:
- Racial discrimination;
- Arbitrary deprivation of liberty;
- Pain and suffering;
- Abuse, including physical, sexual and emotional abuse;
- Disruption of family life;
- Loss of cultural rights & fulfilment;
- Loss of native title rights;
- Labour exploitations;
- Economic loss; and
- Loss of opportunities."[100]
- With regard to civil claims for compensation the Report states:
[d]ifficulties of proof and the expiry of statutory periods of
limitation may deny a remedy to many victims of forcible removal.
However, the harms they suffered... are recognised heads of damages
that can be compensated under Australian law. Relying on the civil
courts for remedies, however, is likely to lead to great delay,
inequity and inconsistency of outcome. The civil process is daunting
and expensive, thus deterring many of those affected. It will also
involve great expense for governments to defend these claims.[101]
- Recognising the difficulties with civil actions for compensation,
the Report recommended the establishment of a "National Compensation
Fund",[102]
with the fund being administered by a "National Compensation Fund Board"[103]
according to prescribed procedures.[104]
It was recommended that a prescribed minimum lump sum be paid to those
forcefully removed from the "National Compensation Fund"[105]
and:
[t]hat upon proof on the balance of probabilities any person
suffering particular harm and/or loss resulting from forcible removal
be entitled to monetary compensation from the National Compensation
Fund assessed by reference to the general civil standards.[106]
- The National Inquiry Report concludes in its discussion on monetary
compensation with the recommendation that any "statutory monetary
compensation mechanism" should not prohibit the right to common law
action but a "claimant successful in one forum should not be entitled to
proceed in the other."[107]
- The Commonwealth Government has been much slower than the State and
Territory Governments in providing a formal apology to Aboriginal
people.[108]
It was not until 26 August 1999 that the Prime Minister, John Howard
proposed a motion to Parliament offering an apology to Aboriginal people
to reaffirm the Government's commitment to reconciliation between
"Indigenous and non-indigenous Australians".[109]
The speech acknowledged:
...that the mistreatment of many indigenous Australians over a
significant period represents the most blemished chapter in our
international history;[110]
The motion then continued to express:
its deep and sincere regret[111]
that indigenous Australians suffered injustices under the practices of
past generations, and for the hurt and trauma that many indigenous
people continue to feel as a consequence of those practices...[112]
- There still has not been any acknowledgment by the Commonwealth
Government that forcible removal constituted systematic racial
discrimination and possibly genocide, and in any case amounted to
violations of human rights. Whilst the Commonwealth recognises the need
to "acknowledge the wrongs of the past", the response does not express
or appear to accept these "wrongs" as human rights violations.
- The Commonwealth Government was much quicker to provide a response
to the other recommendations made by the National Inquiry's Report. In a
press release by Minister for Aboriginal and Torres Strait Islander
Affairs Senator John Herron on 16 December 1997, about six months after
the National Inquiry Report's tabling in Federal Parliament, the
Government again reiterated its opposition to monetary compensation.
Instead the Government outlined a plan to provide $63 million over four
years, primarily aimed at addressing the "family separation and its
consequences":
- $2 million for Australian Archives to index, copy and preserve
thousands of files so that they are more readily accessible;
- close to $6 million for further development of indigenous family
support and parenting programmes;
- in recognition of the importance of indigenous people and others
telling their stories of family separation, $1.6 million to the
National Library for an oral history project;
- a $9 million boost to culture and language maintenance programs;
- $11.25 million to establish a national network of family link-up
services to assist individuals;
- $16 million for 50 new counsellors to assist those affected by
past policies and for those going through the reunion process; and
- $17 million to expand the network of regional centres for
emotional and social well being, giving counsellors professional
support and assistance.
[113]
- The response by the Commonwealth Government is consistent with its
international reparations obligation in certain respects. Specifically,
the Commonwealth recognised its obligation to "acknowledge the wrongs of
the past and [to] address the problems that now exist as a result of
those wrongs".[114]
- It seeks to discharge these obligations through a range of
rehabilitative and restitutionary measures. Recognising the enduring
"emotional and psychological damage"[115]
inflicted upon both parent and child by the separation policy, the
Commonwealth initiative seeks to provide rehabilitation by offering
funding for additional professional counselling services and an
expansion of the existing network of regional counselling centres.[116]
- Rehabilitation of those affected by the forcible removal will also
be facilitated by the establishment of an oral history project.[117]
The project will encourage the reparative process by allowing the
victims to tell their story, the simple act of which has been recognised
as contributing to the healing process. Additionally, the oral history
project advances the "satisfaction" obligation of verification and
disclosure of the facts - it will be a permanent record of this part of
Australian history and it will pay tribute to the victims by
acknowledging their pain and removing any sense of guilt.
- The obligation to make proper restitution within the context of
forcible removal and within the context of the nature of the breach
necessarily involves as one of its components the reunion of removed
children with their parents and families. This was identified by the
National Inquiry Report as being a matter of "most significant and
urgent need".[118]
- The Commonwealth addresses this obligation by offering practical
assistance for family reunion - the indexing and preservation of
indigenous family records,[119]
and increased funding for nationwide "link-up" services.[120]
Certain matters of social justice[121]
arising as a consequence of the removal policy and cultural restitution
are also addressed.[122]
- However, the Commonwealth's response fails to discharge its
international legal human rights obligation, as identified, to make
reparations in several other key areas of Commonwealth responsibility.
The funding for rehabilitation and restitution constitutes the bulk of
the response, leaving many other components of reparation unresolved.[123]
Three areas are readily identified: the failure to pay compensation;
lack of an official apology and acknowledgment of human rights
violations; and the failure to guarantee cessation and non-repetition.
Compensation
- The obligation to pay compensation for breach of international human
rights is established more firmly than any other component of reparation
in international law.[124]
Maintaining the position taken prior to the tabling of the Report of the
National Inquiry, the Commonwealth Government has not made any provision
in its response for the payment of monetary compensation to victims of
the human rights violations that occurred through the practice of
forcible removal. In its submission to the Inquiry, the Commonwealth
cited reasons precluding the ex-gratia payment of compensation.[125]
- In its response to the Inquiry, the Commonwealth rejects the
National Inquiry's recommendation for a National Compensation Fund,
merely stating that the "Commonwealth believes there is no practical or
appropriate way to address [the issue of compensation]".[126]
- International law clearly and explicitly imposes an obligation to
pay compensation as a measure of reparation for any acts which
constitute a violation of human rights. The Commonwealth, being
responsible for making reparations for the breaches which occurred
through forcible removal, is therefore under an obligation to pay
compensation. Compensation is especially significant and appropriate
because measures of restitution cannot completely and strictly restore[127]
the status of those affected by the removal.[128]
- However, compensation has been ruled out by the Commonwealth
Government. Independently of the practicability or otherwise of
compensation,[129]
the response must be considered to be prima facie inconsistent with
Australia's international legal obligations. That the victims may have a
limited right to seek compensation from the domestic judicial system is
no answer to Australia's failure to provide compensation pursuant to its
international law obligations.[130]
Acknowledgment and apology
- The Commonwealth Government of Australia has been hesitant in making
an apology to the Australian Aboriginal community for the past policy
and practice of 'systematically' removing Aboriginal children from their
families. The parliamentary statement eventually made by the Prime
Minister failed to specifically mention those removed or utter the word
'sorry'.[131]
- The word 'regret' was used in a general context for past wrongs and
suffering caused by government policies and practices, however the
statement fell short of the requirement in recommendation 5a of the
Report of the National Inquiry. Furthermore, its response does not
acknowledge the facts of forcible removal as constituting systematic
racial discrimination and possibly genocide, or in any case as amounting
to violations of human rights. Thus, while the Commonwealth recognises
the need to "acknowledge the wrongs of the past",[132]
and while it provides an oral history project to record and preserve
this history, its response does not express or appear to accept these
"wrongs" as human rights violations.[133]
- Nowhere in the response is the term "human rights" actually used.
The Government's willingness to address thoroughly its responsibility
for the human rights violations perpetrated upon the "stolen
generations" and their families and communities is clearly questionable.[134]
Cessation and non-repetition
- Although the formal policies of removal were abolished in the 1970s,
the question arises as to whether the present state systems of child
welfare legislation, by their operation and practice, continue to result
in the same human rights breaches as the previous practice of forcible
removal. The National Inquiry Report noted that although present regimes
recognise the Aboriginal Child Placement Principle[135]
systemic inequalities still exist through the application of
non-Indigenous standards and inequitable bureaucratic procedures.
Indigenous children continue to be severely over-represented within
State and Territory welfare systems, which continue to indirectly
discriminate against Aboriginal children and families through the
application of Anglo-Australian perspectives and values that reject as
beneficial Indigenous values, culture and child-rearing practices.[136]
- The Commonwealth must be vigilant to ensure that current child
welfare practices do not perpetuate past discriminatory practices. In
its response, the Commonwealth has ignored the National Inquiry's
recommendation for national standards and it has resolved to leave the
matter to the States.
- The final major concern is the present intention of the Commonwealth
government not to implement the Genocide Convention in domestic
legislation. This may be contrary to its obligation to guarantee
non-repetition, depending largely upon whether the forcible removals
amounted to genocide. The Government has made reference to the High
Court of Australia case of Kruger and Bray[137]
as supporting its view that past removal practices were not genocidal.
It appears that the Commonwealth understands Kruger to somehow determine
the genocide question and therefore absolves the Commonwealth of any
responsibility in respect of implementing the Genocide Convention.[138]
- However, in the Kruger case, the High Court did not decide whether
the practice of forcible removal amounted to genocide, but only whether
a particular Northern Territory ordinance authorised genocide.[139]
As the High Court stated, the general issue of genocide was not one to
be resolved in that case and, given this uncertainty, the government's
decision not to implement the Convention remains inconsistent with
Australia's obligations at international law. Furthermore, the finding
that the relevant Northern Territory ordinance did not authorise
genocide and the subsequent uncertainty as to the substantive matter
leaves an extremely significant and relevant question open: if genocide
did in fact occur, as the National Inquiry suggests it did, pursuant to
a law which did not authorise it, this must surely be an overwhelming
ground for the immediate implementation of the Genocide Convention.
- On 29 October 1998, the South African Truth and Reconciliation
Commission (hereafter, "the Commission") handed its 3,500 page report
(hereafter "the Commission's report")[140]
to President Nelson Mandela after 30 months of investigations.
- The Commission's report notes that it was the African National
Congress (ANC) which in 1992 first called for the establishment of a
truth commission. The ANC had already set up its own internal
commissions of inquiry[141]
to examine allegations that gross violations of human rights had
occurred within ANC camps. Hayner notes that this:
is the only example of a non-governmental entity - in this case an
opposition movement and armed resistance group that has established a
commission to investigate and publicly report on its own past human
rights abuses.[142]
- The ANC accepted the findings of its commissions that it had
committed human rights abuses, however it argued that these violations
should be seen against the background of the human fights violations
that had taken place in South Africa over a much longer period. It
proposed the appointment of a truth commission as a way of achieving
this.[143]
- In the negotiations that occurred in the transition from repression
to democracy, it was agreed that there would be some form of amnesty for
politically motivated offences committed in the past. The National Party
insisted upon a blanket amnesty, however other parties demanded that
amnesty be linked to a truth commission process. A compromise was
eventually reached only after the remainder of the interim constitution
had been finalised, and this compromise was recorded in what became
known as the "postamble". The postamble provided that there would be
amnesty for politically motivated offences, and that future legislation
would establish the criteria for this.[144]
- The Commission was set up by the Promotion of National Unity and
Reconciliation Act of 1995. Its purpose was described as the bringing
about of "unity and reconciliation by providing for the investigation
and full disclosure of gross violations of human fights committed in the
past". The Commission was empowered to grant amnesty for certain
offences, as required by the interim constitution, however the
circumstances in which this amnesty would be granted were strictly
prescribed.[145]
- Anglican Archbishop Desmond Tutu, the Chairman of the Commission,
said of the Commission at its commencement that it:
remains the only alternative to Nuremberg on the one hand and
amnesia on the other... It does not want to forget the past, it wants
us to look honestly at the past; but once it has opened up the past,
it wants us to forgive. To remember, yes; and then to forgive.[146]
- Seventeen commissioners from all sides of the political spectrum
were appointed following public nominations and hearings.
- As described in the Report, the Commission was given four major
tasks in order to achieve the overall objective of promoting national
unity and reconciliation as follows:
(a) analysing and describing the "causes, nature and extent" of
gross violations of human fights that occurred between 1 March 1960
and 10 May 1994, including the identification of the individuals and
organisations responsible for such violations;
(b) making recommendations to the President on measures to prevent
future violations of human rights;
(c) the restoration of the human and civil dignity of victims of gross
human fights violations through testimony and recommendations to the
President concerning reparations for victims;
(d) granting amnesty to persons who made full disclosure of relevant
facts relating to acts associated with a political objective.[147]
- The Commission was empowered to set up an investigative unit to
examine allegations arising from the work of the Committees as listed
below. This unit had wide powers of search and seizure, and was able to
hold hearings in secret to obtain more information. A witness protection
programme was also established for witnesses whose lives may have been
in danger as a result of their participation.
- The Commission's work was divided among 3 main committees: the Human
Rights Violations Committee, the Amnesty Committee and the Reparations
and Rehabilitation Committee. The work and findings of these committees
is summarised below.
- This committee was targeted specifically at victims. Its task was to
establish the identity of victims of human rights violations, their fate
or whereabouts, the names of those responsible for the violations, and
to record allegations of gross violations of human rights that occurred
between 1 March 1960 and 10 May 1994, within or outside South Africa.[148]
- This committee was the first to hold hearings, in order to focus
attention on the victims, rather than the perpetrators. Victims were
heard from all sections of the population, and included whites who had
been maimed by bombs set off by the Pan African Congress or ANC.[149]
- During the course of the Commission, more than 21,000 people told
their stories, either at public hearings or in statements recorded by
statement-takers.[150]
Summaries of the statements of those people the Commission found to have
suffered gross violations of human rights are to be included in the
additional volume that will be released upon completion of the work of
the Amnesty Committee.[151]
- After extensive hearings which focused on granting victims the
maximum opportunity to be heard, the Commission shifted its emphasis
from individual stories to an attempt to understand the individual and
institutional motives and perspectives which gave rise to the gross
violations of human rights under examination. This included public
submissions by, and questioning of, political parties, and such sectors
as health, business, legal, media, faith, women and youth.[152]
- In its findings, the Commission endorses the position in
international law that apartheid, as a form of systematic racial
discrimination and separation, constitutes a crime against humanity.[153]
- The Commission found further as follows:[154]
(i) The State - in the form of the South African government, the
civil service and its security forces - was, in the period 1960-94,
the primary perpetrator of gross violations of human rights in South
Africa, and from 1974, in Southern Africa;
(ii) In the application of the policy of apartheid, the State in the
Commission's mandate period was increasingly authoritarian in nature
and intolerant of dissent. This was manifested, inter alia, in a host
of legislative measures which severely abridged the principles of the
rule of law and limited the right of the people of South Africa to
free political activity;
(iii) The development of an authoritarian political order was
facilitated by a culture of impunity which emerged as a result of
legislative and other measures by the State, and by the failure of
organs of civil society - political parties, the mass media, faith,
business, legal, medical and other groups - to observe and adhere to
codes and standards of conduct integral to their profession; and
(iv) In the application of the policy of apartheid, the State sought
to protect the power and privilege of a racial minority. A consequence
of this racism was that white citizens in general adopted a
dehumanising position towards black citizens, to the point where they
ceased to regard them as fellow citizens and labelled them as "the
enemy". This created a climate in which gross atrocities committed
against them were seen as legitimate.
- As a consequence of these factors, the Commission found that the
State perpetrated the following types of gross violations of human
rights:
- judicial killings, involving the execution of opponents for
offences of a political and not a criminal nature;
- extra-judicial killings in the form of State-planned and executed
assassinations, attempted killings, disappearances, abductions and
so-called "entrapment killings";
- torture, including not only the intentional infliction of pain,
but also detention without trial and solitary confinement;
- abduction, involving the forcible and illegal removal of people,
often from beyond the borders of South Africa;
- severe ill treatment including sexual assault, abuse or
harassment, the imposition of restrictions on individuals in the form
of banning and banishment orders, the deliberate withholding of
medical attention, food and water, the destruction of homes or offices
through arson or sabotage, and the mutilation of body parts;
- the unjustified use of deadly force in situations where lesser
measures would have been adequate to control demonstrations or detain
or arrest suspects;
- the deliberate manipulation of social divisions in society with
the intention of mobilising one group against another;
- the arming, funding and training of foreign nationals for military
operations against sovereign governments in the region;
- the covert training, arming or funding of offensive paramilitary
units or hit squads for deployment internally against opponents of the
government.
- The Commission made further findings of gross violations against
various pro-State and pro-liberation organisations (eg the Freedom
Front, Inkatha Freedom Party and ANC) and individuals (eg PW Botha,
Winnie Madikizela-Mandela and Mangosuthu Buthelezi).[155]
- This Committee has been extremely controversial. In contrast to the
Reparation and Rehabilitation Committee, which could only make
recommendations, the Amnesty Committee was given powers of
implementation, thereby granting perpetrators who met the criteria
immediate freedom from criminal and civil liability. The report notes
that this was a further source of public tension.[156]
- The Committee consists mainly of judges and lawyers, whose task it
is to consider each application for amnesty and make a decision. In the
report discussion of the amnesty provisions, the Commission conceded
that the implementation of this aspect of its task "proved to be very
difficult indeed". It stated:
[The granting of amnesty] is a difficult, sensitive, perhaps even
agonising, balancing act between the need for justice to victims of
past abuse and the need for reconciliation and rapid transition to a
new future; between encouragement of wrongdoers to help in the
discovery of the truth and the need for reparations for the victims of
that truth; between a correction in the old and the creation of the
new. It is an exercise of immense difficulty interacting in a vast
network of political, emotional, ethical and logistical
considerations.[157]
- The Commission sought to justify the concept of amnesty implemented
by it, as follows:
(i) The negotiated agreement in South Africa averted a costly
return to the politics of confrontation and mass mobilisation.
"Had the miracle of the negotiated settlement not occurred, we
would have been overwhelmed" by the bloodbath that virtually
everyone predicted as the inevitable ending for South Africa."[158]
(ii) There was no possibility of following a post WWII example of
putting those guilty of gross violations of human rights on trial as
the Allies did at Nuremberg, because there existed in South Africa a
military stalemate.
"Neither side in the struggle (the State nor the liberation
movement) had defeated the other and hence nobody was in a position
to enforce the so-called victor's justice."[159]
(iii) The postamble to the interim constitution placed an
obligation on South Africa's first democratic government to make
provision for amnesty. The choice was between blanket amnesty and
qualified amnesty.
(iv) Section 20 of the Promotion of Nationality and Reconciliation
Act provided that amnesty could be granted on the following
conditions, which were stringent:
(a) applicants were required to apply for amnesty for each
offence committed;
(b) applications had to be made within the time frame laid down in
the legislation;
(c) perpetrators were required to make full disclosure of their
crimes in order to qualify for amnesty;
(d) amnesty hearings involving gross violations of human rights were
to take place in public, save in exceptional circumstances;
(e) amnesty had to be granted on the basis of a set of objective
criteria: this included requirements that the offences occurred
within a specific time period (1.3.60 - 10.5.94), that the crimes
fell exactly within the meaning of a "political act", crimes had to
have been committed with a political objective in the context of a
political uprising or event and on behalf of a political party or
security force and must have borne a relationship and
proportionality to the objective desired;
(f) amnesty would not be automatic; and
(g) names and crimes would be published in the report of the
Commission and Government Gazette.[160]
(v) Further, in cases where amnesty applications were not made or
were not successful, these people may still be prosecuted in a
criminal trial.[161]
(vi) The report notes that:
"even if the South African transition had occurred without any
amnesty agreement, even if a criminal prosecution had been
politically feasible, the successful prosecution of more that a
fraction of those responsible for gross violations of human rights
would have been impossible in practice. The issue is not therefore,
a straight trade-off between amnesty and criminal or civil trials.
What is at stake, rather, is a choice between more or less full
disclosure; the option of hearing as many cases as possible against
the possibility of a small number of trials revealing, at best,
information only directly relevant to specific charges."[162]
The report further noted that:
"...because such legal proceedings rely on proof beyond
reasonable doubt, the criminal justice system is not the best way to
arrive at the truth. There is no incentive for perpetrators to tell
the truth and often the court must decide between the word of one
victim against the evidence of many perpetrators. Such legal
proceedings are also harrowing experiences for victims, who are
invariably put through extensive cross-examination."[163]
- The Committee received 7,060 applications for amnesty.[164]
As at 29 October 1998, there were still 2,000 applications to be
processed. The deadlines for the Amnesty Committee to produce its final
report were extended[165]
and as at October 1999, it continues to adjudicate applications.[166]
When the Committee's work is completed, its findings will be delivered
as an additional volume to the existing five volumes already released.[167]
- Out of the total of 7,000 applications processed, about three
quarters of the applicants were found to be liable for ordinary crimes
consisting of property offences, arms violations, etc and not human
rights violations.[168]
These petitions were therefore denied. Torrens notes that of the 1,600
who applied for amnesty because of human rights violations, more than
half were successful.[169]
- It is the Commission's assessment that the concept of individual
amnesty applied by it has been a success. Through this means, the truth
has been revealed:
We now know what happened to Steve Biko, to the PEBKO Three, to the
Cradock Four. We now know who ordered the Church Street bomb attack
and who was responsible for the St James Church massacre. We have been
able to exhume the remains of about fifty activists who were abducted,
killed and buried secretly...Those who have cared about the future of
our country have been worried that the amnesty provision might,
amongst other things, encourage impunity because it seemed to
sacrifice justice. We believe this view to be incorrect. The amnesty
applicant has to admit responsibility for the act for which amnesty is
being sought, thus dealing with the matter of impunity. Furthermore,
apart from the most exceptional circumstances, the application is
dealt with in a public hearing. The applicant must therefore make his
admissions in the full glare of publicity.[170]
- Author David Goodman admits to having been staunchly opposed to the
concept of amnesty for perpetrators of atrocities when he first began
attending hearings of the Amnesty Committee: "Freeing killers in
exchange for telling the truth is morally absurd."[171]
Nevertheless, after attending hearings and talking with South Africans
over a period of 3 years, Goodman reached a "surprising conclusion"
about the process he had described as "a flawed, compromised national
process of introspection and confession". He says simply: "it worked."[172]
- Goodman notes that white South Africans "have been confronted with
irrefutable evidence of the depravity of the system that served them"
while black South Africans "have finally heard public acknowledgment of
the brutality that they and their leaders endured." He says that the
vast majority of black South Africans with whom he spoke about the
Commission were supportive of the truth and amnesty process, quoting one
mother of a slain activist as saying, "It is better to know who killed
my son. They can get the amnesty, but they mustn't go to jail. They must
support the children and families of the victims."[173]
- Goodman states:
"With the carrot of amnesty and the threat that former colleagues
would turn on them, ex-enforcers have confessed to murders that have
defied numerous inquests and court cases over the past 40 years....
Concurrent with the TRC hearings in South Africa have been the
international tribunals that are attempting to indict the masterminds
behind the conflicts in both Rwanda and Yugoslavia. It has been a
telling juxtaposition. Despite their enormous investigative resources,
those tribunals have been stunningly impotent, resulting in precious
few imprisonments and even fewer convictions."
- In answer to the question "What good is truth?" Goodman notes the
example of the Mothers of the Plaza de Mayo who have gathered each week
for 20 years to try to find out what happened to their children; those
who disappeared in the Argentine "dirty war" in the 1970's: "They are a
haunting symbol of what happens when a nation fails to reckon with its
past."[174]
- Pursuant to section 4(f) of the Promotion of National Unity and
Reconciliation Act ("the Act"), one of the functions of the Commission
is to make recommendations to the South African President with regard
to:
(i) the policy which should be followed or measures which should be
taken with regard to the granting of reparation to victims or the
taking of other measures aimed at rehabilitating and restoring the
human and civil dignity of victims; and
(ii) measures which should be taken to grant Urgent Interim Reparation
to victims.[175]
- Thus, the task of the Reparations and Rehabilitation Committee was
to develop such a policy for awarding reparations and rehabilitation to
victims. Section 42 of the Act provides for the establishment by the
President, in consultation with the Ministers of Justice and Finance, of
a President's Fund from which all money payable to victims shall be
disbursed.[176]
- The report states that the legal basis for reparation was further
established by the judgment in the case of The Azanian Peoples
Organisation, Biko, Mxenge and Ribeiro v The President of the Republic
of South Africa and Others,[177]
in which the applicants sought an order declaring section 20(7) of the
Act unconstitutional.
- Section 20(7) is the amnesty provision, which states that a person
who has been granted amnesty for an act shall not be criminally or
civilly liable in respect of that act. Similarly, neither the State nor
any other body, organisation nor person that would ordinarily have been
vicariously liable for such act can be liable in law. The section was
held not to be unconstitutional. In the course of his judgment, Mahomed
CJ said that he understood why the applicants wished to:
insist that wrongdoers who abused their authority and wrongfully
murdered and maimed or tortured very much loved members of their
families who had, in their view, been engaged in a noble struggle to
confront the inhumanity of apartheid, should vigorously be prosecuted
and effectively be punished for their callous and inhuman conduct in
violation of the criminal law.[178]
- His Honour argued however that there was good reason to believe that
the granting of amnesty might assist in uncovering the truth about the
past, thus assisting in the process of reconciliation and
reconstruction:
Much of what transpired in this shameful period is shrouded in
secrecy and not easily capable of objective demonstration and proof.
Loved ones have disappeared, sometimes mysteriously, and most of them
no longer survive to tell their tales. Secrecy and authoritarianism
have concealed the truth in little crevices of obscurity in our
history. Records are not easily accessible; witnesses are often
unknown, dead, unavailable or unwilling. All that often effectively
remains is the truth of wounded memories of loved ones sharing
instinctive suspicions, deep and traumatising to the survivors but
otherwise incapable of translating themselves into objective and
corroborative evidence which could survive the rigours of law...[179]
- Didcott J then addressed the issue of reparations for victims and
their families as follows:
Reparation is usually payable by States, and there is no reason to
doubt that the postscript envisages our own State shouldering the
national responsibility for those. It therefore does not contemplate
that the State will go Scot-free. On the contrary, I believe an actual
commitment on the point is implicit in its terms... It... offers some
quid pro quo for the loss and establishes the machinery for
determining such alternative redress.[180]
- It must be noted however that the potential for the government to
pay reparations on the recommendations of the Commission cannot be
regarded as equivalent to the existing legally enforceable rights held
by victims of human rights atrocities in both national and international
law, that were extinguished by the granting of amnesties.
- Section 1(1) (xiv) of the Act defines reparation as including: "any
form of compensation, ex gratia payment, restitution, rehabilitation or
recognition."[181]
- In order to formulate its policy on reparations and rehabilitation,
the Committee held workshops throughout the country with victims,
Non-Government Organisations, community groups, faith communities and
academic institutions to: establish harm suffered, determine the needs
and expectations of victims, establish criteria to identify victims in
urgent need and develop proposals regarding long-term reparation and
rehabilitation measures.[182]
- The Committee states in the report that it was guided by
internationally accepted approaches to the issue of reparation,
including the factors of redress, restitution, rehabilitation,
restoration of dignity and reassurance of non-repetition.
- Its policy development was also informed by the work of the Chilean
Truth Commission, which awarded a pension to the families of the dead
and disappeared, and, most pertinently, by the conclusions of the
Skweyiya and Motsuenyane Commissions into the gross human rights
violations of the ANC.[183]
- Those commissions had recommended that victims should receive
monetary compensation, appropriate medical and psychological assistance,
assistance in completing interrupted education, and compensation for
property lost.[184]
The most important factor in the Committee's decision to make monetary
grants to individual victims was a survey of victim statements revealing
that the highest expectation of the reparation process was for monetary
assistance.[185]
- The proposed reparation and rehabilitation policy prepared by the
Committee has 5 parts: urgent interim reparation; individual reparation
grants; symbolic reparation/ legal and administrative measures;
community rehabilitation programmes and institutional reform. These are
discussed as follows:
Urgent Interim Reparation
- This involves assistance for people in urgent need, to provide them
with access to appropriate services and facilities (including
information about and referral to services, and financial assistance in
order to access and/or pay for services deemed necessary). The Committee
designed an application form for the use of applicants, requiring
information to enable it to establish whether the applicant was a
victim, whether s/he was in urgent need and the nature of the urgency.
The Committee recommended that limited financial resources be made
available to facilitate access to services for people in this category.[186]
- It also recommended that all those found to be victims be eligible
for final reparation, regardless of urgency of need.[187]
Individual Reparation Grants
- This is an individual financial grant scheme. The Commission
recommends that each victim of a gross human rights violation, as named
by the Commission, receive a financial grant according to various
criteria, paid over a six-year period. The monetary package is based on
a benchmark amount of R21,700, being the median annual household income
in South Africa in 1997. The actual amount that each victim receives
will be based on a formula, which differentiates according to three
criteria:
(a) an acknowledgment of the suffering caused by the violation,
(b) an amount to facilitate access to services (ie more for those
living in rural areas),
(c) an amount to subsidise daily living costs, according to number of
dependants and/or relatives (capped at 9).[188]
- Based on the policy and formula, and an estimate of 22,000 victims
(derived from the Commission's Human Rights Violations Statement, as the
only point of entry), the total cost of the individual reparation policy
will be approximately R477,400,000 per annum or R2,864,400,000 over six
years.
- The grants will be funded and administered by the President's Fund,
which will accrue resources through allocations from the national fiscus,
international and local donations and interest earned on the funds. It
is intended that no individual will receive more than R23,023 per annum
by way of a grant.[189]
Symbolic Reparation/Legal & Administrative Measures
- This category of reparation is expressed as covering measures to
facilitate the communal process of remembering and commemorating the
pain and victories of the past, including identifying a national day of
remembrance and reconciliation, erection of memorials and monuments, the
development of museums, and the renaming of streets, and community and
public facilities to honour individuals and events.
- Legal and administrative measures are also proposed to assist
individuals to obtain declarations of death, death certificates, to
resolve outstanding legal matters and to expunge criminal records.[190]
Community Rehabilitation Programmes
- The Committee notes that entire communities have been subjected to
systemic abuse, and therefore suffer the adverse effects of
post-traumatic stress disorder. The Committee suggests that
rehabilitation programmes, established at community and national levels,
should form part of a general initiative to transform the way in which
services are provided in South Africa. This would entail co-operation
between government departments and business, victim support groups,
NGOs, faith communities and so on.[191]
- Specific programmes recommended by the Committee as part of
rehabilitation include:
(a) national demilitarisation: the work of the Commission showed
that young people in South Africa have been socialised to accept
violence as a way of resolving conflict. The Committee believes that
it is therefore necessary that they be demilitarised. This will
involve secondary and tertiary education institutions and sporting
bodies applying a combination of social, therapeutic and political
processes and interventions;[192]
(b) resettlement of displaced people: the Committee notes that South
Africa has thousands of internal refugees who have been driven from
their homes by political conflict. Such displacement can lead to
psychological distress, unemployment and trauma. It is recommended
that a multi-disciplinary programme (involving all relevant
departments such as health, welfare and housing) be put in place to
resettle displaced persons and address the problems of displaced
communities;[193]
(c) local treatment centres: the Committee recommends that the complex
physical and emotional needs of victims and survivors of gross human
rights violations can be most appropriately addressed by
multi-disciplinary teams - taking cultural and personal preferences
into account - at accessible local treatment centres established by
the Department of Health;[194]
(d) rehabilitation for perpetrators and their families: in order to
ensure that a society is created in which human fights abuses will not
recur, it is necessary that perpetrators and their families be
reintegrated into normal community life. This would involve them
coming to terms with their violent past and learning constructive and
peaceful ways of resolving conflict;[195]
(e) mental health services: the Committee notes that currently,
negative perceptions about therapy prevent people seeking help from
mental health services. It is recommended therefore that individuals
and communities be educated about the link between mental health and
conflicts of the past;[196]
(f) community-based interventions: the Committee recommends that
self-sustaining, community-based survivor groups be established,
staffed by trained facilitators from the community. The support group
method represents a cost-effective, accessible, non-threatening way in
which people can access counselling;[197]
(g) skills training: the Committee recommends that community members
be trained in a variety of skills to enable them to assist victims of
human rights abuses, including crisis management, critical incident
briefing, trauma awareness training and referral skills;[198]
(h) specialised trauma counselling services: it is recommended by the
Committee that specialised emotional trauma counselling services be
established, and a national strategy to train trauma counsellors be
developed;[199]
(i) family-based therapy: because the impact of gross human rights
violations on the family is often under-estimated, it is recommended
that training programmes for health care workers aimed at improving
their skills in the family systems approach be instituted by the
relevant ministries;[200]
(j) education: the Committee noted that the standard of black
education was appalling, and that this aspect of the legacy of
apartheid is likely to have long-term effects. It recommends: (1) the
establishment of community colleges and youth centres to facilitate
the reintegration of affected youth into society; (2) specific
accelerated adult basic education and training (ABET) programmes to be
set up to meet the needs of youth and adults who are semi-literate and
have lost educational opportunities due to human rights abuses; (3)
the building and improvement of schools, particularly in rural and
disadvantaged areas; (4) special remedial and emotional support
services to be included in mainstream educational programmes; and (5)
that mainstream educational facilities should provide skills based
training courses in order to respond to the needs of mature students
and to help them find employment;[201]
and
(k) housing: it is recommended that the appropriate ministry put the
mechanisms in place to establish housing projects in communities where
gross violations of human rights led to mass destruction of property
and/or displacement.[202]
Institutional Reform
- The Reparation and Rehabilitation Committee notes in the report that
one of the functions of the Commission is to make recommendations on
institutional legislative and administrative measures designed to
prevent the recurrence of human rights abuses in the future. It
recommends that the measures and programmes outlined in the chapter in
the report on Recommendations becomes part of the operational plans and
ethos of a wide range of sectors in society including the judiciary,
media, security forces, business, education and correctional services.[203]
- These recommendations include the promotion of a human rights
culture through measures such as: the establishment of human rights
bureaux in government ministries, the introduction of human rights
curricula in formal education, specialised education and the training of
law enforcement personnel; the dissemination of the Commission's report
as widely as possible; the encouragement of journalists and academics to
undertake quantitative analysis of the data given to the Commission as a
basis for understanding the motives and perspectives of those engaged in
the conflicts of the past; research and field-based initiatives aimed at
promoting a better understanding between people of different
persuasions; recommitment of the government to regular and fair
elections, and to open, clean and transparent administrative and
judicial decision-making.
- The South African Commission's proceedings have almost all been
public and the Commission has had broad powers of subpoena, search and
seizure, as well as the ability to protect witnesses and compel
testimony. For example, former State President PW Botha, against whom
serious findings of gross human rights violations were made, was
prosecuted and convicted, in August 1998, for refusing to appear before
the Commission. The Commission has now also recommended that he be
prosecuted for atrocities committed during his rule.
- In countries such as Argentina,[204]
amnesty provisions introduced to protect perpetrators from being
prosecuted for past offences were blanket amnesties, with no requirement
for individual application or confession of particular crimes. As noted
above, under its limited amnesty provisions, the South African
Commission on the other hand, obtained detailed accounts and
acknowledgment of responsibility from perpetrators as to their and
others' crimes, yet has significantly restricted the number of
successful applicants for amnesty through stringent eligibility
requirements.
- The most striking aspect of the South African Commission that stands
out from other commissions for present purposes however is the emphasis
placed on reparations for the victim. The recommendations of the
Reparations and Rehabilitation Committee, if implemented by the
President, will be far more comprehensive than any other reparation
scheme proposed to date, including that of Germany.
- The South African model adopts the international criteria for
adequate reparations for the victims of gross violations of human
rights, including compensation, restitution, rehabilitation, and most
aspects of satisfaction and guarantees of non-repetition (aside from its
amnesty provision).
- While much of the truth about the past has been exposed, there is an
increasing view that no reconciliation has occurred nor will it occur.
In a few cases, there has been forgiveness by the family of the victims
towards the perpetrators. For example, Matthew Goniwe was one of four
black activists abducted and murdered by security police in the Eastern
Cape on 27 June 1985. One of the policemen applied for amnesty. At the
hearing, he asked for the chance to meet with the family. After 4 hours
of discussion in a church in London, the son of Matthew Goniwe forgave
his father's killer.[205]
- On the other hand, a number of families of victims have always
opposed the amnesty clause and have attempted to block it through the
courts. Among these are the families of black activist Steve Biko,
murdered in 1977, and the brother of Griffiths Mxenge, a lawyer stabbed
to death by police in 1981. They oppose the amnesty process because it
takes away their right of redress, removing all recourse to criminal or
civil action in law.[206]
- The Commission acknowledges those critics who have questioned its
effectiveness in achieving truth at the expense of reconciliation:
History will judge whether or not this particular criticism is
accurate. It is, nevertheless, worth making two points in this regard.
The first is that, while truth may not always lead to reconciliation,
there can be no genuine, lasting reconciliation without truth.
Certainly, lies, half-truths and denial are not a desirable foundation
on which to build the new South Africa. Second, it is readily conceded
that it is not possible for one commission, with a limited life-span
and resources, on its own to achieve reconciliation against the
background of decades of oppression, conflict and deep divisions.[207]
- The issue of South Africa's amnesty clause is likely to be the
subject of ongoing national and international debate. From the point of
view of the Commission, the attainment of truth and acknowledgment of
responsibility is the precondition to reconciliation, for South Africa
to move forward. It is to the advantage of South African society as a
whole. From the point of view of the families of the victims, having the
truth acknowledged is an important aspect of the healing process,
however, seeing the remorseless violators of their loved ones' human
life and dignity escape the consequences of acknowledged atrocities is
unlikely to achieve justice or closure, or to speed the aim of
reconciliation at an individual level.
- International human rights law is concerned primarily with the
protection of the individual. The instances when the rights of
individuals may be derogated from are extremely limited and do not apply
in cases of gross violations of human rights.
- It has been noted in earlier sections of this paper that impunity
for perpetrators of gross violations of human rights may be regarded as
contrary to the international law obligation to provide reparations for
such violations.
- This article explored the obligations under international law to
provide reparations for human rights abuses. It briefly explored
responses made by the governments of Germany, Chile and Argentina to
atrocities that had been committed in those nations. The paper then
explored in more detail the more recent Australian and South African
inquiries and truth commissions into human rights violations, namely the
Australian Human Rights and Equal Opportunity Commission's National
Inquiry into the Aboriginal "Stolen Generations" and the South African
Truth and Reconciliation Commission's investigation into the Apartheid
regime.
- The Australian Government's responses to the Report of the National
Inquiry has been somewhat mixed, and demonstrably deficient in some
areas. In South Africa, there appears to be more political will to
implement the Truth and Reconciliation Commission's recommendations,
however insufficient time has elapsed since the handing down of the
report to judge the effectiveness of the Government response. The South
African Government must also contend with the controversial decision to
grant complete amnesty to certain self-confessed perpetrators of gross
human rights abuses.
- The issue of impunity from punishment or liability creates its own
human rights questions, which will undoubtedly continue to plague future
inquiries and truth commissions.
[1] van Boven, T., (Special
Rapporteur of the United Nations), Study concerning the right to
restitution, compensation and rehabilitation for victims of gross
violations of human rights and fundamental freedoms: Final Report, UN Doc.
E/CN. 4/Sub.2/1993/8, 2 July 1993, 7 (hereafter the "van Boven Report").
See below for a discussion on the various elements of reparation.
[2] National Inquiry into the
Separation of Aboriginal and Torres Strait Islander Children from their
Families: Bringing Them Home Report (Sydney: Human Rights and Equal
Opportunity Commission, 1997) ( hereafter "the Report of the National
Inquiry").
[3] South African Truth and
Reconciliation Commission, Report 1998, [Internet] URL:
http://www.truth.org.za/final/index.htm (hereafter "the Commission's
Report")
[4] Justice Roy, "Is the Law of
Responsibility of States for Injuries to Aliens a Part of Universal
International Law?" (1961) 55 American Journal of International Law 863,
863.
[5] For a discussion and
references on the sources and obligations under international law to
provide reparations refer to Orentlicher, D.F., "Addressing Gross Human
Rights Abuses: Punishment and Victim Compensation" in Henkin, L., and
Hargrove, J.L., (eds), Human Rights: An Agenda for the Next Century,
(Washington DC: The American Society of International Law, 1994),
425-426;.Steiner, H.J., and Alston, P., International Human Rights in
Context: Law, Politics and Morals (Oxford: Clarendon Press,1996); Wallace,
R., International Human Rights: Text & Materials (London: Sweet & Maxwell,
1997); and Minow, M., Between Vengeance and Forgiveness (Boston: Beacon
Press, 1998)
[6] E/CN.4/Sub.2/1989/13.
[7] van Boven, above n 1.
[8] van Boven, T, 1996: Revised
set of basic principles and guidelines on the right to reparation for
victims of gross violations of human rights and humanitarian law prepared
by Mr. Theo van Boven pursuant to Sub-Commission decision 1995/117, U.N.
Doc. E/CN.4/Sub.2/1996/17, 24 May 1996 (hereafter the 'revised van Boven
Principles').
[9] van Boven, above n 1.
[10] van Boven, above n 8, 2.
[11] Ibid.
[12] Id, 4.
[13] Ibid.
[14] Ibid.
[15] Id, 5.
[16] Report of the National
Inquiry, above, n 2.
[17] "ICCPR" Article 2(3)(a):
"Each State Party... undertakes to ensure that any person whose rights or
freedoms as herein recognized are violated shall have an effective
remedy...", G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N.
Doc. A/6316 (1966) U.N.T.S. 171, entered into force Mar. 23, 1976.
[18] "ICERD" Article 6 : "States
Parties shall assure to everyone within their jurisdiction effective
protection and remedies... as well as the right to seek just and adequate
reparation or satisfaction..." 660 U.N.T.S. 195, entered into force Jan.
4, 1969.
[19] "CROC" Article 39: " States
Parties shall take all appropriate measures to promote physical and
physiological recovery and social integration of a child victim of... [any
form of] cruel, inhuman or degrading treatment or punishment...", G.A.
res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49
(1989).
[20] "CAT" Article 14 - "Each
State Party shall ensure in its legal system that the victim of an act of
torture obtains redress and has an enforceable right to fair and adequate
compensation, including the means for as full rehabilitation as
possible.", G.A. Res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197,
U.N. Doc. A/39/15 (1984); adopted by the General Assembly on 10 December
1984.
[21] Restitution by its very
nature is not elucidated to the same extent as the other forms of
reparation but it is nevertheless a recognised component of "redress",
"reparation" and "just satisfaction": see for example, Articles 8-11, 19,
Declaration of Basic Principles of Justice for Victims of Crime and Abuse
of Power G.A. 40/34, annex, 40 U.N. GAOR Supp. (No. 53) at 214, U.N. Doc.
A/40/53 (1985); Article 50, European Convention for the Protection of
Human Rights and Fundamental Freedoms, ETS No. 5, Rome, 4.XI.1950 in the
context of De Wilde, Ooms & Versyp v Belgium, European Court of Human
Rights, Judgment 10 March 1972 (Article 50), Series A, No. 14 cited in van
Boven, T, 1993: Study concerning the right to restitution, compensation
and rehabilitation for victims of gross violations of human rights and
fundamental freedoms: Final report submitted by Mr Theo van Boven, Special
Rapporteur, U.N. Doc. E/CN.4/Sub.2/1993/8, para 83; see also Encyclopedia
of Public International Law, Volume 10 "States - Responsibility of States
- International Law and Municipal Law" (Amsterdam: Elsevier Science
Publishers B.V., 1987), 369, 375-178. See also Deng, F, Guiding Principles
on internal displacement - human rights, mass exoduses and displaced
persons: Report of the Representative of the Secretary-General, Mr.
Francis M. Deng, submitted pursuant to Commission resolution 1997/39, U.N.
Doc. E/CN.4/1998/53/Add.2, Principle 29.
[22] Article 10, 63(1), American
Convention on Human Rights, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123
entered into force July 18, 1978, reprinted in Basic Documents Pertaining
to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6
rev.1 at 25 (1992); Article 21(2), African Charter on Human and Peoples'
Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58
(1982), entered into force Oct. 21, 1986; Article 9(5), International
Covenant on Civil and Political Rights G.A. res. 2200A (XXI), 21 U.N. GAOR
Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered
into force March 23, 1976; Article 5(5), European Convention for the
Protection of Human Rights and Fundamental Freedoms, ETS No. 5, Rome,
4.XI.1950; Article 14(1) Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, annex, 39
U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into
force June 26, 1987; Article 19, Declaration on the Protection of All
Persons from Enforced Disappearance, G.A. res. 47/133, 47 U.N. GAOR Supp.
(No. 49) at 207, U.N. Doc. A/47/49 (1992); Article 15(2), 16(5), ILO
Covention Concerning Indigenous and Tribal Peoples in Independent
Countries (ILO No. 169), 72 ILO Official Bull. 59, entered into force
Sept. 5, 1991; Articles 12-13, 19, Declaration of Basic Principles of
Justice for Victims of Crime and Abuse of Power G.A. 40/34, annex, 40 U.N.
GAOR Supp. (No. 53) at 214, U.N. Doc. A/40/53 (1985).
[23] Article 14(1) Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197,
U.N. Doc. A/39/51 (1984), entered into force June 26, 1987; Article 19,
Declaration on the Protection of All Persons from Enforced Disappearance,
G.A. res. 47/133, 47 U.N. GAOR Supp. (No. 49) at 207, U.N. Doc. A/47/49
(1992); Article 39, Convention on the Rights of the Child, G.A. res.
44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49
(1989), entered into force Sept. 2, 1990; Articles 14-17, 19, Declaration
of Basic Principles of Justice for Victims of Crime and Abuse of Power G.A.
40/34, annex, 40 U.N. GAOR Supp. (No. 53) at 214, U.N. Doc. A/40/53
(1985).
[24] Article 6, International
Convention on the Elimination of All Forms of Racial Discrimination, 660
U.N.T.S. 195, entered into force Jan. 4, 1969; Article 16(4), ILO
Covention Concerning Indigenous and Tribal Peoples in Independent
Countries (ILO No. 169), 72 ILO Official Bull. 59, entered into force
Sept. 5, 1991.
[25] Velásquez Rodriguez Case
(Venezuela v Peru), Compensatory Damages (Art. 63(1) American Convention
on Human Rights), Judgment of July 21, 1989 Inter-Am.Ct.H.R. (Ser. C) No.
7 (1990), para 25; Factory at Chorzów (Germany-Poland), Jurisdiction,
Judgment No. 8, 1927, P.C.I.J., Series A, No. 9, 21; Factory at Chorzów
(Germany Poland), Merits, Judgment No. 13, 1928, P.C.I.J., Series A, No.
17, 29, 47; Interpretation of Peace Treaties with Bulgaria, Hungary and
Romania (Second Phase), Advisory Opinion, [1950] I.C.J. Rep. 228;
Aloeboetoe et al. Case, Reparations (Art. 63(1) American Convention on
Human Rights) Judgment of September 10, 1993, Inter-Am.Ct.H.R. (Ser. C)
No. 15 (1994); Article 8, Universal Declaration of Human Rights, G.A. res.
217A (III) U.N. Doc. A/810 at 71 (1948); Reparation for Injuries Suffered
in the Service of the United Nations, Advisory Opinion, [1949] I.C.J. Rep.
174;
[26] van Boven, above n 1, 36-37.
[27] Inter-Am. Crt H.R. Judgment,
Ser.C, No.4 (1988) para 174.
[28] van Boven, above n 1, 53.
[29] van Boven, above n 1, 50.
[30] Id, 44.
[31] Id, 45.
[32] Danieli, Y., "Preliminary
Reflections from a Psychological Perspective", Seminar on the Right to
Restitution, Compensation and Rehabilitation for Victims of Gross
Violations of Human Rights and Fundamental Freedoms (Maastricht:
University of Limburg, 11-15 March 1992) 196, 205.
[33] van Boven, above n 1, 45.
[34] Quiroga, C.M. "The
Experience of Chile", Seminar on the Right to Restitution, Compensation
and Rehabilitation for Victims of Gross Violations of Human Rights and
Fundamental Freedoms (Maastricht: University of Limburg, 11 - 15 March
1992) 101, 104.
[35] van Boven, above n 1, 47.
[36] Hayner, P. B., "Fifteen
Truth Commissions - 1974 to 1994: A Comparative Study" (1994) 16 Human
Rights Quarterly 597, 622.
[37] Ibid.
[38] Hayner, above n 36.
[39] van Boven, above n 1, 51
[40] Coonan, T.S., "Rescuing
History: Legal and Theological Reflections on the Task of Making Former
Torturers Accountable" (1997) 20 Fordham International Law Journal 512,
517-518.
[41] Hayner, above n 36, 615.
[42] Coonan, above n 40, 520.
[43] Coonan, above n 40, 522.
[44] Id, 522-523.
[45] Id, 523.
[46] Artucio, A., "Impunity of
Perpetrators", Seminar on the Right to Restitution, Compensation and
Rehabilitation for Victims of Gross Violations of Human Rights and
Fundamental Freedoms (Maastricht: University of Limburg, 11-15 March 1992)
182, 193.
[47] van Boven, above n 1, 50.
[48] Orentlicher, D. F., above n
5, 430.
[49] Van Boven, as above n 1, 51.
[50] Orentlicher, D. F., above n
5, 458.
[51] Id, 430.
[52] van Boven, above n 1, 52.
[53] Ratner, S., and Abrams, J.,
Accountability for Human Rights Atrocities in International Law: Beyond
the Nuremberg Legacy (Oxford: Clarendon Press, 1997) 199. See below for
further comment on the South African situation.
[54] van Boven, above n 1, 52;
see also Artucio, above n 46, 182, 186.
[55] van Boven, above n 1, 8.
[56] See for example, Report of
the National Inquiry, above n 2, 266; and Buti, T., "Removal of Indigenous
Children from their Families: The National Inquiry and What Came Before -
The Push for Reparation" (1998) 3 Australian Indigenous Law Reporter 1.
[57] Butler R, speaking at the
workshop on removal of Indigenous children at the Australian
Reconciliation Convention in Melbourne, 26 May 1997, stated that the
Secretariat of National Aboriginal and Islander Child Care, along with
other organisations and individuals had been lobbying governments to hold
an inquiry since the late 1980's.
[58] Refer to above n 2; and Buti,
T., After the Removal, (Perth: ALSWA (Inc), 1996).
[59] D'Souza, N., '"The Stolen
Generation: From Removal to Reconciliation", (1998) 21(1) University of
New South Wales Law Journal 204, 205.
[60] Ibid.
[61] ALSWA, Telling Our Story: A
Report by the ALSWA (Inc) on the removal of Aboriginal children from their
families in Western Australia, (Perth: ALSWA (Inc), 1995).
[62] Buti, T., above n 58.
[63] Via proof of evidence and/or
questionnaire-statement from over 700 people.
[64] Williams v Minister
Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497.
[65] Kruger v Commonwealth; Bray
v Commonwealth 146 ALR 126.
[66] Unpublished. Refer to an
earlier version of the paper, Merkel R, "Government Culpability For The
Forced Removal of Aboriginal Children From Their Families", (1990) 2(47)
Australian Law Bulletin 4.
[67] Hereafter "HREOC". HREOC is
a Commonwealth statutory body charged with advocating, mediating and
adjudicating on matters of discrimination and human rights.
[68] Report of the National
Inquiry, above n 2, 252.
[69] Id, 253.
[70] Id, 255-256.
[71] Id, 256-257.
[72] Id, 259, 260.
[73] Id, 277.
[74] Id, 277, 278.
[75] Id, 278.
[76] Id, 250.
[77] Report of the National
Inquiry, above n 2, 266, 269; and American Law Institute, Restatement of
the Law, Third, The Foreign Relations Law of the United States,
INTERNATIONAL LAW OF HUMAN RIGHTS, Section 702 (headnote) (St. Paul:
American Law Institute Publishers, 1997).
[78] Report of the National
Inquiry, above n 2, 250, 277.
[79] Id, 277; the discriminatory
operation of the legislation preceded the separate legislation.
[80] Id, 270-275, 278. Such
violations occurred during the time which Australia was bound by the
Genocide Convention and possibly before under obligations erga omnes; see
Hugo Princz v Federal Republic of Germany 26F. 3d 1116, 65, 1 July 1994
(US App.) cited in Buti, T, above n 46, 12; cf Alec Kruger & Ors v The
Commonwealth of Australia; George Ernest Bray & Ors v The Commonwealth of
Australia 146 ALR 126; hereafter "Kruger and Bray".
[81] Notwithstanding that the
legislation authorising the removal was primarily State legislation; see
Heirs of the Duc de Guise Case (France-Italy) (1964) 13 Reports of
International Arbitral Awards 154, 161; Pellat Case (France-Mexico) (1952)
5 Reports of International Arbitral Awards 534, 536, cited in Encyclopedia
of Public International Law, Volume 10 "States - Responsibility of States
- International Law and Municipal Law" (Amsterdam: Elsevier Science
Publishers B.V., 1987), 367-8; Charlesworth, H., "Individual Complaints:
An Overview and Admissibility Requirements" in Pritchard, S, (ed)
Indigenous Peoples, the United Nations and Human Rights (Sydney: The
Federation Press, 1998), 76; Velásquez Rodriguez Case, Judgment of July
29, 1988, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988); note also American Law
Institute, Restatement of the Law, Third, The Foreign Relations Law of the
United States, INTERNATIONAL LAW OF HUMAN RIGHTS, Section 702, Comment b,
Reporter's Note 2, Section 703, Comment c(St. Paul: American Law Institute
Publishers, 1997).
[82] Report of the National
Inquiry, above n 2, 269, 282; and van Boven, above n 1, paras 8, 13;
American Law Institute, Restatement of the Law, Third, The Foreign
Relations Law of the United States, INTERNATIONAL LAW OF HUMAN RIGHTS,
Section 702, Comment m (St. Paul: American Law Institute Publishers,
1997).
[83] Orentlicher, D. F., above n
5, 457.
[84] Report of the National
Inquiry, above n 2, recommendations 5 and 6, 284-292.
[85] Pritchard, S., "The Stolen
Generations and Reparations" (1997) 4:3 UNSW Law Journal Forum 28, 28-29.
[86] Report of the National
Inquiry, above n 2, recommendations 8 and 9, 295.
[87] Id, 294-295. The lack of
domestic incorporation of the Genocide Convention was noted in Kruger and
Bray cases, above n 70 (Dawson J, at 160; Toohey J, at 174; Gummow J, at
231; Gaudron J, at 190, comments on genocide being contrary to fundamental
principles of common law).
[88] Report of the National
Inquiry, above n 2, recommendation 11, 297.
[89] Id, recommendation 12, 300.
[90] Id, recommendation 13, 301.
[91] Id, Part 5.
TOP
[92] Id, recommendations 33 - 35,
396-397; recommendation 37, 401.
[93] Id, recommendation 36, 399.
[94] Commonwealth Government,
(Submissions to) National Inquiry into Separation of Aboriginal and Torres
Strait Islander Children from their Families, 1996, 26-32. Also refer to,
"Long delay awaits victims of forced removal", The Australian, 27 May
1997, "No compo for stolen children: Williams", Canberra Times, 22 May
1997.
[95] Report of the National
Inquiry, above n 2, 306.
[96] Graycar, R., "Compensation
for the Stolen Children: political judgments and community values" (1997)
4:3 UNSW Law Journal Forum, 24-25.
[97] Ison, T., The Forensic
Lottery: A Critique of Tort Liability as a System of Personal Injury
Compensation (London: Staples Press, 1967); and see more generally; Cane,
P., Accidents, Compensation and the Law, 5th Ed (Sydney: Butterworths,
1993); Luntz, H., The Assessment of Damages for Personal Injuries, 3rd Ed
(Sydney: Butterworths, 1990).
[98] Graycar, above n 96.
[99] Report of the National
Inquiry, above n 2, recommendation 14, 304.
[100] Report of the National
Inquiry, above n 2, 303-307.
[101] Id, 305.
[102] Id, recommendation 16, 310.
[103] Ibid.
[104] Id, recommendation 17, 311.
[105] Id, recommendation 18, 312.
"That it be a defence to a claim (for a minimum lump sum) for the
responsible government to establish that the removal was in the best
interests of the child."
[106] Id, recommendation 19, 312.
[107] Id, Recommendation 20, 313.
Refer to 302-313 for a discussion on the monetary compensation issue.
[108] South Australia: 28 May
1997; Western Australia: 28 May 1997; Queensland: 3 June 1997; ACT: 17
June 1997; New South Wales: 18 June 1997; Tasmania: 13 August 1997; and
Victoria: 17 September 1997. The Northern Territory Government has not
made a statement of apology. Most of the major churches have also issue
statements of apology. Also a National Sorry Day organised by members of
the community was held on 26 May 1998.
[109] Transcript of the Prime
Minister The Hon. John Howard MP Motion of Reconciliation 26 August, 1999
[Internet] URL <http://www.pm.gov.au/media/pressrel/1999/reconciliation2608.htm>
1
[110] Ibid.
[111] Emphasis added
[112] Above n 109.
[113] Australia, Minister for
Aboriginal and Torres Strait Islander Affairs Senator John Herron
"Bringing Them Home - Commonwealth Initiatives" Media Release (16 December
1997).
[114] Id, 1.
[115] Report of the National
Inquiry, above n 2, 278-279; and above n 113, 3. See also Buti, T, "The
Removal of Aboriginal Children From Their Families: The Case for
Reparation" Address, Eighth Concours International de Plaidoiries (Caen,
26 January 1997), 5.
[116] About $33 million in total,
see Herron above n 113, 8.
[117] Id, 8-9.
[118] Report of the National
Inquiry, above n 2, 347.
[119] Herron, above n 113, 6.
[120] Id, 7.
[121] In conjunction with
existing programmes.
[122] Family support and
parenting programmes, culture and language centres. See Herron, above n
113, 5, 8-9. Note that the language and culture centres component is
funded from ATSIC's existing budget. Note also the existence and partial
implementation of migration and transfer of prisoners legislation.
[123] In fact, the Government
acknowledged its incomprehensive response when it noted the Report's
insistence upon compensation and other measures but stated that the
proposed measures on family reunion, health and other services for those
affected by forcible removal would "form the focus of the measures being
announced". Id, 2-3.
[124] See for example, Article
10, 63(1), American Convention on Human Rights, O.A.S. Treaty Series No.
36, 1144 U.N.T.S. 123 entered into force July 18, 1978, reprinted in Basic
Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82
doc.6 rev.1 at 25 (1992); Article 21(2), African Charter on Human and
Peoples' Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21
I.L.M. 58 (1982), entered into force Oct. 21, 1986; Article 9(5),
International Covenant on Civil and Political Rights [ICCPR] G.A. res.
2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966),
999 U.N.T.S. 171, entered into force March 23, 1976; Article 5(5),
European Convention for the Protection of Human Rights and Fundamental
Freedoms, ETS No. 5, Rome, 4.XI.1950; Article 14(1) Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A.
res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51
(1984), entered into force June 26, 1987; Article 19, Declaration on the
Protection of All Persons from Enforced Disappearance, G.A. res. 47/133,
47 U.N. GAOR Supp. (No. 49) at 207, U.N. Doc. A/47/49 (1992); Article
15(2), 16(5), ILO Convention Concerning Indigenous and Tribal Peoples in
Independent Countries (ILO No. 169), 72 ILO Official Bull. 59, entered
into force Sept. 5, 1991; Articles 12-13, 19, Declaration of Basic
Principles of Justice for Victims of Crime and Abuse of Power G.A. 40/34,
annex, 40 U.N. GAOR Supp. (No. 53) at 214, U.N. Doc. A/40/53 (1985);
Velásquez Rodriguez Case, Compensatory Damages (Art. 63(1) American
Convention on Human Rights), Judgment of July 21, 1989 Inter-Am.Ct.H.R.
(Ser. C) No. 7 (1990); Velásquez Rodriguez Case, Judgment of July 29,
1988, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988), para 174-177; Factory at
Chorzów (Germany-Poland), Jurisdiction, Judgment No. 8, 1927, P.C.I.J.,
Series A, No. 9, 21; Factory at Chorzów (Germany-Poland), Merits, Judgment
No. 13, 1928, P.C.I.J., Series A, No. 17, 29; Reparation for Injuries
Suffered in the Service of the United Nations, Advisory Opinion, [1949]
I.C.J. Rep. 184; see also E/CN.4/Sub.2/1992/NGO/9 (written statement by
the International Commission of Jurists to the Sub-Commission on
Prevention of Discrimination and Protection of Minorities, 44th Session)
cited in van Boven, T, 1993: Study concerning the right to restitution,
compensation and rehabilitation for victims of gross violations of human
rights and fundamental freedoms: Final report submitted by Mr Theo van
Boven, Special Rapporteur, U.N. Doc. E/CN.4/Sub.2/1993/8; John Khemraadi
Baboeram, André Kamperveen, Cornelis Harold Riedewald et al. v Suriname
(1985) Communications Nos. 143/1983 and 148 to 154/1983, reported in
United Nations, Human Rights Committee Selected decisions of the Human
Rights Committee under the optional protocol, Vol. 2, Seventeenth to
thirty-second sessions (October 1982-April 1988) (New York: United
Nations, 1990); Jean Miango Muiyo v Zaire (1987), Communication No.
194/1995, reported in United Nations, Human Rights Committee Selected
decisions of the Human Rights Committee under the optional protocol, Vol.
2, Seventeenth to thirty-second sessions (October 1982-April 1988) (New
York: United Nations, 1990); and Antonio Vianna Acosta v Uruguay (1983)
Communication No. 110/1981, reported in United Nations, Human Rights
Committee, Selected Decisions of the Human Rights Committee (New York:
United Nations, 1980).
[125] The Commonwealth submitted
that three principles would preclude the ex-gratia payment of
compensation: difficulties in identifying the persons eligible for
compensation; difficulties in estimating the amount of loss in monetary
terms; negative consequences for the wider community. See Report of the
National Inquiry, above n 2, 305-306.
[126] Herron, above n 113,
Summary of Recommendations and Commonwealth Initiatives.
[127] Because of the nature of
the breach, restitutio in integrum stricto sensu is not possible.
[128] In the case of material
impossibility: Encyclopedia of Public International Law, Volume 10 "States
- Responsibility of States - International Law and Municipal Law"
(Amsterdam: Elsevier Science Publishers B.V., 1987), 377 citing the Walter
Fletcher Smith Claim (1949) 2 Reports of International Arbitral Awards,
9313; Rhodope Forest Case (1950) 3 Reports of International Arbitral
Awards, 1406; Factory at Chorzów (Germany-Poland), Merits, Judgment No.
13, 1928, P.C.I.J., Series A, No. 17, 47; De Wilde, Ooms & Versyp v
Belgium, European Court of Human Rights, Judgment 10 March 1972 (Article
50), Series A, No. 14, para 20.
[129] Report of the National
Inquiry, n 2, 305-307; and above n 95.
[130] For example, Velásquez
Rodriguez Case, Compensatory Damages (Art. 63(1) American Convention on
Human Rights), Judgment of July 21, 1989 Inter-Am.Ct.H.R. (Ser. C) No. 7
(1990), para 30-31; Godinez Cruz Case, Compensatory Damages (Art. 63(1)
American Convention on Human Rights), Judgment of July 21, 1989, Inter-Am.Ct.H.R.
(Ser. C) No. 8 (1990), para 28-29.
[131] Above n 109. Cf: The
Honourable Jane Stewart, Minister Of Indian Affairs and Northern
Development, Statement of Reconciliation: Learning from the Past, 7
January 1998,
http://www.inac.gc.ca/info/speeches/jan98/action.html
[132] Herron, above n 113, 1.
[133] Australia, Amnesty
International "Silence on Human Rights: Government Responds to 'Stolen
Children' Inquiry" Report ASA 12 February 98, para 4; note significance of
Corfu Channel Case (United Kingdom-Albania) [1949] I.C.J. Rep. 4.
[134] See generally Australia,
Amnesty International "Silence on Human Rights: Government Responds to
'Stolen Children' Inquiry" Report ASA 12 February 98, para 28-30; there is
also no comment upon the Government's duty to investigate and bring to
justice those who perpetrated the breaches of such rights. On sanctions
for perpetrators see above, note 30, para 15; John Khemraadi Baboeram,
André Kamperveen, Cornelis Harold Riedewald et al. v Suriname (1985)
Communications Nos. 143/1983 and 148 to 154/1983, reported in United
Nations, Human Rights Committee Selected decisions of the Human Rights
Committee under the optional protocol, Vol. 2, Seventeenth to
thirty-second sessions (October 1982-April 1988) (New York: United
Nations, 1990); Joaquin David Herrera Rubio, José Herrera and Emma Rubio
de Herrera v Colombia (1987) Communication No. 161/1983, reported in
United Nations, Human Rights Committee Selected decisions of the Human
Rights Committee under the optional protocol, Vol. 2, Seventeenth to
thirty-second sessions (October 1982-April 1988) (New York: United
Nations, 1990); Jean Miango Muiyo v Zaire (1987), Communication No.
194/1995, reported in United Nations, Human Rights Committee Selected
decisions of the Human Rights Committee under the optional protocol, Vol.
2, Seventeenth to thirty-second sessions (October 1982-April 1988) (New
York: United Nations, 1990); Walter Lafuente Penarrieta, Miguel Rodriguez
Candia, Oscar Ruiz Cáceres et al. v Bolivia (1987), Communication No.
176/1984), reported in United Nations, Human Rights Committee Selected
decisions of the Human Rights Committee under the optional protocol, Vol.
2, Seventeenth to thirty-second sessions (October 1982-April 1988) (New
York: United Nations, 1990).
[135] The principle that when an
Aboriginal or Torres Strait Islander child is to be placed in substitute
care, he or she should be placed within their own culture and community
where possible.
[136] Report of the National
Inquiry, above n 2, 250, 269, Part 6 - Chapter 21 generally; also
Australia, Human Rights and Equal Opportunity Commission "Commission urges
Government to make amends to the Stolen Children" Media Release 27 May
1997.
[137] Kruger and Bray, above n
65.
Top
[138] Amnesty International notes
that the relevant Northern Territory ordinance in Kruger and Bray, was
only one of over one hundred laws and policies which applied across
different jurisdictions at varying times: Australia, Amnesty International
"Silence on Human Rights: Government Responds to 'Stolen Children'
Inquiry" Report ASA 12 February 98, para 19.
[139] Above n 65, 167 (Dawson J),
175 (Toohey J).
[140] The Commission's Report,
above n 3.
[141] The Stuart, Skweyiya and
Motsuenyane commissions of 1992-3, as noted in the Commission's report,
above n 3, vol. 1, "mandate", para 6.
[142] Hayner, above n 36, 625.
[143] The Commission's Report,
above n 3, vol. 1, ch.4, para 7.
[144] Id, para 19.
[145] The amnesty provisions are
discussed below.
[146] Smith, T., "A Nation
Examines its Conscience", America 8 November 1997, vol. 177, no. 14, 22.
[147] The Commission's Report,
above n 3, vol.1, ch.4, para 32.
[148] Id, para 34.
[149] Smith, above n 146.
[150] The Commission's Report,
above n 3, vol.5, ch.6, para 5.
[151] Id, executive summary.
[152] The Commission's Report,
above n 3, vol.1, ch.4, para 35.
[153] Id, vol.5, ch.6, para 101.
[154] Ibid.
[155] The Commission's Report,
above n 3, vol.5 ch.6.
[156] Id, vol.1, ch.5, para 9.
[157] Id, vol.5, ch.5, para 54.
[158] Id, vol.1, foreword by
Archbishop Desmond Tutu, para 22.
[159] The Commission's Report,
above n 3, vol.1, foreword by Archbishop Desmond Tutu, para 21.
[160] Id, vol.1, ch.5, para 60.
[161] Ibid.
[162] The Commission's Report,
above n 3, vol.1, ch.5, para 71.
[163] Id, vol.1, foreword by
Archbishop Desmond Tutu, para 24.
[164] Goodman, D, "Why Killers
Should Go Free: Lessons from South Africa", The Washington Quarterly,
Spring 1999, v22, i2, p169 (1)
[165] Africa News Service, "No
Impunity for Perpetrators of Human Rights Abuses", 2.8.99
[166] TRC Amnesty Hearings
Current Schedule:
http://www.truth.org.za/hs0799.htm
[167] The Commission's Report,
above n 3, vol.1, foreword by Archbishop Desmond Tutu, para 50.
[168] Torrens, JS, "The Many
Faces of Amnesty", America, 17.7.99, v181, i2, p12
[169] Ibid.
[170] The Commission's Report,
above n 3, vol.1, foreword by Archbishop Desmond Tutu. Paras 29 & 32.
[171] Goodman, above n 164
[172] Ibid.
[173] Ibid.
[174] Ibid.
[175] The Commission's Report,
above n 3, vol.5, ch.5, para 8.
[176] Id, para 10.
[177] (1996) (8) BCLR 1015 (CC).
[178] The Commission's Report,
above n 3, vol.1, ch.7, para 10.
[179] The Commission's Report,
above n 3, vol.1, ch.7, para 11.
[180] Id, vol.5, ch.5, paras 5-6.
[181] Id, para 23.
[182] Id, para 36.
[183] As discussed above.
[184] The Commission's Report,
above n 3, vol.5, ch.5, paras 38-39.
[185] The Commission's Report,
above n 3, para 44.
[186] Id, paras 55-65.
[187] Id, para 64.
[188] Id, paras 69-72.
[189] The Commission's Report,
above n 3, paras 73-75.
[190] Id, paras 78-93.
[191] Id, paras 95-96.
[192] Id, paras 96-97.
[193] Id, paras 98-99.
[194] The Commission's Report,
above, n 3, para 100.
[195] Id, para 101.
[196] Id, para 102.
[197] Id, para 103.
[198] Id, para 104.
[199] Id, para 105.
[200] Id, para 106.
[201] Id, paras 107-112.
[202] Id, para 113.
[203] The Commission's Report,
above n 3, paras 114-115.
[204] Another example is Uruguay
[205] Smith, above n 146.
[206] Ibid.
[207] The Commission's Report,
above n 3, vol.5, ch.8, Recommendations.
|
|
|
