TRC Final Report

Volume 5

Chapter 5

Subsection 2

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment⁵

17 The Committee against Torture, established to ensure compliance with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, has found that complaints relating to acts of torture which occurred before the Convention entered into force are inadmissible because the Convention cannot be applied retroactively. Consequently, the Committee declared inadmissible a series of complaints by Argentinean citizens who alleged that they had been tortured before the Convention had come into force. Despite this rather technical finding, the Committee stressed in its communication to the government of Argentina that it should, in order to comply with the spirit of the Convention against Torture, ensure that victims of torture receive “adequate compensation”. This is another example of an international body requiring, not just token, but significant reparation to be made to victims of human rights abuse.

The Inter-American Conventions on Human Rights

18 The Inter-American Convention on Human Rights contains provisions that grant victims of human rights abuse a right to compensation. In the famous Velasquez Rodriguez case⁶, the Inter-American Court held that a state is under an obligation to “provide compensation as warranted for damages resulting from the violations [of the rights recognised by the Convention]”. On numerous other occasions – most recently in 1992 with respect to the governments of Uruguay and Argentina – the Inter-American Court has reasserted its view that victims of human rights abuse are entitled to compensation .

The moral argument

19 The South African conflict produced casualties. Many people were killed, tortured, abducted and subjected to various forms of severe ill treatment. This not only destroyed individual lives, but also affected families, communities and the nation as a whole.⁸ As a result, the new South Africa has inherited thousands of people whose lives have been severely affected. If we are to transcend the past and build national unity and reconciliation, we must ensure that those whose rights have been violated are acknowledged through access to reparation and rehabilitation. While such measures can never bring back the dead, nor adequately compensate for pain and suffering, they can and must improve the quality of life of the victims of human rights violations and/or their dependants.

20 The present government has accepted that it is morally obliged to carry the debts of its predecessors and is thus equally responsible for reparation. Implementation of reparation will afford all South Africans an opportunity to contribute to healing and reconciliation.

21 Without adequate reparation and rehabilitation measures, there can be no healing and reconciliation, either at an individual or a community level. Comprehensive forms of reparation should also be implemented to restore the physical and mental well being of victims.

22 The following policy proposals and recommendations in respect of both urgent interim reparation and reparation itself are, therefore, submitted to the State President for his consideration in terms of sections 27 and 40(1)(d) of the Act.