TRC Final Report

Volume 6

Section 2

Chapter 2

Subsection 4

Nature of remedy or reparation offered

23. As the right to a remedy for victims of human rights abuse has increasingly been accepted in international human rights and humanitarian law, reasonable consensus has begun to emerge as to what such reparation should entail. Significantly, in almost every instance, the remedy envisaged goes far beyond individual monetary compensation.

24. The UNHCHR, established to ensure state compliance with the International Covenant on Civil and Political Rights, has recommended that a state that is in violation of the Covenant should:

a pay financial compensation to the victim;

b provide appropriate care where necessary;

c investigate the matter; and

d take appropriate action, including bringing the perpetrator to justice.

25. Article 14 of the Convention against Torture states that:

Each State Party shall ensure in its legal system that the victim of an act of tort u re obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as the result of an act of torture, his dependants shall be entitled to compensation.

26. In 1998, the Working Group on Involuntary or Enforced Disappearances issued a similar declaration. However, it extended the right of re dress to the family of the victims and stipulated that, in the case of enforced disappearances, it was the primary duty of the state to establish the fate and whereabouts of the disappeared. In considering what could be regarded as adequate reparation, the Working Group stated that it should be ‘proportionate to the gravity of the human rights violations (that is the period of disappearance, the conditions of detentions and so on) and to the suffering of the victim and the family’. In determining compensation, the Working Group noted that consideration should be given to the following:

a physical and mental harm;

b lost opportunities;

c material damages and loss of earnings ;

d harm to reputation; and

e legal costs incurred as a result of the violation.

27. In the event of the death of a victim, additional compensation should be awarded .

28. Additional measures to ensure rehabilitation (such as physical and mental services) and restitution (restoration of personal liberty, family life, citizenship, employment or property, return to the place of residence) should be provided . Finally the victim and her/his family should be guaranteed the non-repetition of the violation.

29. The Draft Principles (as drafted by Professor M Cherif Bassiouni) give fairly detailed guidance on the possible forms of reparation. These are worth setting out in full, as the recommendations made by the Commission exemplify these principles in many respects, demonstrating the extent to which the re commendations the Commission proposes are in line with those proposed internationally.

Article 22: Restitution should, wherever possible, restore the victim to the original situation before the violations of international human rights or humanitarian law occurred. Restitution includes: restoration of liberty; legal rights; social status; family life or citizenship; re turn to one’s place of residence; restoration of employment and re t u rn of property.

Article 23: Compensation should be provided for any economically assessable damage resulting from violations of international human rights and humanitarian l a w, such as: physical or mental harm, including pain, suffering and emotional distress; lost opportunities, including education; material damages and loss of e a rnings, including loss of earning potential; harm to reputation or dignity; costs required for legal or expert assistance, medicines and medical services, and psychological and social service s .

Article 24: Rehabilitation should include medical and psychological care as well as legal and social serv ices .

Article 25: Satisfaction and guarantees of non-repetition should include, where applicable, any or all of the following: cessation of continuing violations; verification of the facts and full and public disclosure of the truth to the extent that such d i s closure does not cause further unnecessary harm or threaten the safety of the victim, witnesses or others; the search for the bodies of those killed or disappeared and assistance in the identification and reburial of the bodies in accordance with the cultural practices of the families and communities; an official declaration or a judicial decision restoring the dignity, reputation and legal and social rights of the victim and of the persons closely connected with the victim; apology, including public acknowledgment of the facts and acceptance of responsibility; judicial or administrative sanctions against persons responsible for the violations; com memorations and tributes to the victims; inclusion of an accurate account of the violations that occurred of international human rights and humanitarian law in training and in educational material at all levels.

Preventing the recurrence of violations by such means as (1) Ensuring effective civilian control of military and security forces; (2) Restricting the jurisdiction of m i l i t a ry tribunals only to specifically military offences committed by members of the armed forces; (3) Strengthening the independence of the judiciary; (4) Protecting persons in the legal, media and other related professions and human rights’ defenders; (5) Conducting and strengthening, on a priority and continued basis, human rights training to all sectors of society, in particular to military and security forces and to law enforcement officials; (6) Promoting the observance of codes of conduct and ethical norms, in particular international standards, by public servants, including law enforcement, correctional, media, medical, psychological, social service and military personnel, as well as the staff of economic enterprises; (7) Creating mechanisms for monitoring conflict resolution and preventive intervention .