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Buti, Antonio; Parke, Melissa --- "International Law Obligations to Provide Reparations for Human Rights Abuses" [1999] MurdochUeJlLaw 41; (1999) 6(4) Murdoch University Electronic Journal of Law
International Law Obligations to Provide Reparations for Human Rights Abuses
Authors: |
Antonio Buti BPE (Hons), Dip Ed, MIR, LLB (Hons) (ANU)
Senior Lecturer, Murdoch University School of Law
|
|
Melissa Parke B Bus (Curtin) LLB (UNSW) LLM (Murdoch)
|
Issue: |
Volume 6, Number 4 (December 1999)
|
ContentsInternational Law Obligations to Provide Reparations for Human Rights Abuses
- 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] AUIndigLawRpr 7; (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] UNSWLawJl 16; , (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 [1997] HCA 27; 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 [1997] HCA 27; 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.
[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.
[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.
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