TRC Final Report

Volume 6

Section 2

Chapter 2

Subsection 3

THE INTERNATIONAL ARGUMENTS

15. In its Final Report,^{2 6} the Commission made it clear that its position with regard to reparations was consistent with well-established international principles. The following section re-states and elaborates this position.

The right to reparation

16. The protection of human rights is widely recognised as a fundamental aim of modern international law, which holds states liable for human rights violations and the abuses they or their agents commit. For some considerable time now, the minds of the international legal community have been preoccupied with the issue of compensation for injuries arising from human rights violations and the formulation of effective reparation policies. Although no consistent reparations policy has evolved in international human rights law, there is nevertheless reasonable consensus about the obligations of states to make reparations for violations of human rights.

17. A survey of international law institutions, bodies and tribunals at both global and regional level, taken together with the many treaties, declarations, conventions and protocols in respect of the protection of civil liberties and human rights, provides overwhelming proof of the moral and legal support the Commission’s reparations policy finds in international law. Indeed, as will be shown, the re p a-ration policy proposed by the RRC is in many respects framed by the policy positions of the international human rights community.

18. The Universal Declaration of Human Rights of 1948, the founding document on international human rights, states 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 laws’. The declaration further states that any person unlawfully arrested, detained or convicted has an enforceable right to compensation.²⁷

19. Further examples of support for reparation can be found in the International Covenant on Civil and Political Rights (1966); the International Convention on the Elimination of All Forms of Racial Discrimination (1966); the Convention on the Prevention and Punishment of Genocide (1948); the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (1984); the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985); the United Nations (UN) Security Council Resolution on the Establishment of the UN Compensation Commission (1991), and the study by the United Nations High Commission on Human Rights (UNHCHR) concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms (1993).

20. In the Commission’s Final Report, reference was made to the last-mentioned stud y, in which the UNHCHR argued that, where a state or any of its agents is responsible for killings, torture, abductions or disappearances, it has a legal obligation to compensate victims or their families.

21. Subsequent to the publication of the Commission’s Final Report, the UN authorised a further study on the subject of reparations. On 18 January 2000, a UNHCHR working group, headed by international human rights scholar M Cherif Bassiouni, drew up a report that incorporated the UN ‘Draft Principles and Guidelines on the Right to Remedy and Reparation for Victims of Violations of I n t e rnational Human Rights and Humanitarian Law’ (the Draft Principles). The report confirms that, in order to comply with their international human rights and humanitarian law obligations, states must adopt inter alia:

a appropriate and effective judicial and administrative procedures and other appropriate measures that provide fair, effective and prompt access to justice; and

b measures to make available adequate effective and prompt reparation .

22. In terms of these Draft Principles, the expression ‘access to justice’ is not limited to access to ordinary courts of law, but also includes equal and effect i v e access to justice in the form of adequate reparations. In order to give effect to these principles, states must provide victims with appropriate mechanisms for accessing and receiving reparations .