TRC Final Report

Volume 6

Section 2

Chapter 2

Subsection 6

Amnesty and reparation in international law

40. The aim of restorative justice internationally is to restore the balance in favour of the victim to whom wrong has been done. The intention is to provide compensation for loss, to make victims whole and to sanction perpetrators and ensure that they are deterred from engaging in future misconduct.³² The Final Report offers a definition of restorative justice as a process that satisfies the following criteria:³³

a It seeks to redefine crime: it shifts the primary focus of crime from the breaking of laws or offences against a faceless state to a perception of crime as violations against human beings, as injury or wrong done to another person.

b It is based on reparation: it aims for the healing and the restoration of all concerned – of victims in the first place, but also of offenders, their families and the larger community.

c It encourages victims, offenders and the community to be directly involved in resolving conflict, with the state and legal professionals acting as facilitators.

d It supports a criminal justice system that aims at offender accountability, full participation of both the victims and offenders, and making good or putting right what is wrong .

41. International law has been hostile to blanket amnesties and to amnesty provisions that deprive victims of their civil law rights. The granting of amnesty undermines victims’ rights to justice through the courts by removing their rights to pursue civil claims against perpetrators, who thereby escape liability. In a 1998 ruling, the IAHRC condemned the 1993 El Salvadorean amnesty law because it ‘ expressly eliminat[ed] all civil liability (article 4) … Prevent[ing] the surviving victims and those with legal claims … from access to effective judicial recourse ’ .

42. This implies that amnesty in respect of civil liability for human rights violations can be reconciled with international law only where the state has simultaneously furnished some mechanism of investigation and some form of reparation for victims. Thus the ‘Draft Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity’ prepared for the UNHCHR’s Sub-Commission on Prevention of Discrimination and Protection of Minorities in October 1997 stipulates that:

Even when intended to establish conditions conducive to a peace agreement or to foster national reconciliation, amnesty and other measures of clemency shall be kept within the following bounds. They shall be without effect with respect to the victims’ right to reparation …

43. Repeated references in international human rights instruments and treaties, echoed by state practice and expert opinion, to the obligation of states to respect and ensure respect for rights, right of access to justice and the right to remedy, provide strong evidence of a customary obligation. Such obligation implies that victim reparations are a minimum requirement where ordinary access to the courts is limited.

44. Therefore, because the South African amnesty process deprives victims of access to the courts, its international legitimacy depends on the provision of adequate reparations to the victims of gross violations of human rights. Making good the injuries to victims of gross violations of human rights where their ability to seek reparation has been taken away from them is thus an inescapable moral obligation on the part of the post-apartheid democratic state.

45. In short, amnesty coupled with an adequate and effective provision for reparation and rehabilitation meets government’s obligation to ensure justice to the victims of the past. Stated differently, amnesty without an effective reparations and rehabilitation programme would be a gross injustice and betrayal of the spirit of the Act, the Constitution and the country.

46. It can be seen from the above discussion that the reparation policy proposed by the RRC is well within the bounds determined by international human rights law. Indeed, as suggested above, the policy proposed by the RRC is, in many respects, an attempt to take seriously international consensus on developing a defensible and sound reparations program m e .

47. Finally, it must be noted that the former government was not a party to any of the major international human rights treaties during the Commission’s mandate period – that is, the period during which violations of human rights were perpetrated on a large scale. This does not, however, render the current South African gove rnment immune from the obligation to make reparation for gross violations committed during the mandate period. As indicated above, South Africa is bound by customary international law for violations committed during the apartheid era.