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)
Subjects:	Human rights (Other articles) International law (Other articles) Reparations
Issue:	Volume 6, Number 4 (December 1999)
Category:	Refereed Articles

Contents

• Introduction
• International Law And Reparations
• National Law and Practices & Truth Commissions
  • Germany
  • Chile
  • Argentina
  • Overview of Reparations Schemes in Germany, Chile and Argentina
  • Issue of Impunity
• Recent Developments - Australia and South Africa
• Australia's National Inquiry
• Introduction
• The Report of the National Inquiry
• The Commonwealth Government's Response
• Consistency of Commonwealth government's response
• Inconsistency of Commonwealth government's response
• South Africa's Truth and Reconciliation Commission
• Introduction
• Human Rights Violations Committee
• Amnesty Committee
• Reparations and Rehabilitation Committee
• Nature of the Commission's proceedings
• Truth and/or Reconciliation in South Africa?
• Conclusion
• Notes

Introduction

1. 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.

2. 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]

3. 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]

   International Law And Reparations

4. 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]

5. 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]

6. 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]

7. 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]

8. 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]

9. 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]

10. 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]

11. 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]

12. 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]

13. 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.

14. 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]

15. 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]

16. 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]

17. 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.

    National Law and Practices & Truth Commissions - Germany, Chile and Argentina

18. 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.

    Germany

19. 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]

20. 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]

21. 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.

22. 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]

23. 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]

    Chile

24. 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]

25. 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]

26. 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]

27. 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]

28. 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]

29. 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]

    Argentina

30. 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]

31. 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.

32. 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]

33. 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]

34. 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]

35. 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]

    Overview of Reparations Schemes in Germany, Chile and Argentina

36. The accounts of events in the above three countries show marked differences between them in the recognition of the rights of victims.

37. 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]

38. 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.

39. 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.

    Issue of Impunity

40. "States may not deprive individuals of a remedy."[48]

41. 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.

42. 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]

43. 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]

44. 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]

45. 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]

46. 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]

    Recent Developments - Australia and South Africa

47. 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.

48. 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]

49. 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.

    Australia's National Inquiry

    Introduction

50. 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]

51. 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.

52. 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.

53. 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.

54. 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 Report of the National Inquiry

55. 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]

56. 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]

57. 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]

58. 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

59. 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]

60. 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

61. 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]

62. Recommendation 10 of the report argues for the Commonwealth Government to "legislate to implement the Genocide Convention" into domestic law.[87]

    Restitution

63. 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

64. 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

65. 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]

66. 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:

    1. Racial discrimination;
    2. Arbitrary deprivation of liberty;
    3. Pain and suffering;
    4. Abuse, including physical, sexual and emotional abuse;
    5. Disruption of family life;
    6. Loss of cultural rights & fulfilment;
    7. Loss of native title rights;
    8. Labour exploitations;
    9. Economic loss; and
    10. Loss of opportunities."[100]

67. 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]

68. 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]

69. 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's Response

70. 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]

71. 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.

72. 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]

    Consistency of Commonwealth government's response

73. 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]

74. 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]

75. 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.

76. 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]

77. 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]

    Inconsistency of Commonwealth government's response

78. 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

79. 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]

80. 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]

81. 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]

82. 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

83. 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]

84. 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]

85. 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

86. 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]

87. 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.

88. 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]

89. 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.

    South Africa's Truth and Reconciliation Commission

    Introduction

90. 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.

91. 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]

92. 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]

93. 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]

94. 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]

95. 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]

96. Seventeen commissioners from all sides of the political spectrum were appointed following public nominations and hearings.

97. 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]

98. 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.

99. 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.

    Human Rights Violations Committee

100. 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]

101. 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]

102. 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]

103. 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]

104. 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]

105. 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.

106. 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.

107. 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]

     Amnesty Committee

108. 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]

109. 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]

110. 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]

111. 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]

112. 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]

113. 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]

114. 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]

115. 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]

116. 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."

117. 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]

     Reparations and Rehabilitation Committee

118. 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]

119. 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]

120. 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.

121. 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]

122. 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]

123. 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]

124. 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.

125. Section 1(1) (xiv) of the Act defines reparation as including: "any form of compensation, ex gratia payment, restitution, rehabilitation or recognition."[181]

126. 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]

127. 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.

128. 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]

129. 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]

130. 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

131. 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]

132. It also recommended that all those found to be victims be eligible for final reparation, regardless of urgency of need.[187]

     Individual Reparation Grants

133. 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]

134. 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.

135. 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

136. 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.

137. 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

138. 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]

139. 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

140. 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]

141. 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.

     Nature of the Commission's proceedings

142. 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.

143. 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.

144. 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.

145. 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).

     Truth and/or Reconciliation in South Africa?

146. 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]

147. 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]

148. 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]

149. 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.

150. 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.

151. 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.

     Conclusion

152. 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.

153. 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.

154. 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.