TRC Final Report

Volume 5

Chapter 5

Subsection 1

International legal framework

11 The right of victims of human rights abuse to fair and adequate compensation is well established in international law. In the past three years, South Africa has signed a number of important international instruments, which place it under an obligation¹ to provide victims of human rights abuse with fair and adequate compensation. The provisions of these instruments, together with the rulings of those bodies established to ensure compliance with them, indicate that it is not sufficient to award ‘token’ or nominal compensation to victims. The amount of reparation awarded must be sufficient to make a meaningful and substantial impact on their lives. In terms of United Nations Conventions, there is well established right of victims of human rights abuse to compensation for their losses and suffering. It is important that the reparation policy adopted by the government, based on recommendations made by the Commission is in accordance with South Africa’s international obligations. The reparation awarded to victims must be significant.

12 What follows is a brief review of international law in this regard.

Universal Declaration of Human Rights²

13 Article 8 of the Universal Declaration of Human Rights stipulates that:

Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

14 The use of the words “effective remedy” underscores the point that the reparation awarded must be meaningful and substantial.

The International Covenant on Civil and Political Rights³

15 Section 3(a) of the International Covenant on Civil and Political Rights reads:

Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.

16 The Human Rights Committee established under the Optional Protocol to the International Covenant on Civil and Political Rights to consider alleged breaches of the Covenant has considered a number of cases relating to the right to compensation arising from gross violations of human rights.⁴ In all these cases, it has been held that, where the state or any of its agents is responsible for killings, torture, abductions or disappearances, it is under a legal obligation to pay compensation to the victims or their families. The fact that, in the majority of instances, the Committee has used the term ‘compensation’ implies that the award to victims should be substantial.