TRC Final Report

Volume 6

Section 2

Chapter 3

Subsection 1

Volume SIX Section TWO Chapter THREE

The Argument for Reparation: Comparative and Customary L a w

1. Most of the many advances made over recent decades with respect to reparation policy have taken place at the level of global bodies and individual case law. More recently, however, the issue of reparations has become a matter of national significance in countries that have experienced transitions to democracy after years of repression .³⁴ For example, first in Argentina and then elsewhere in South America, a series of truth commissions were established by transitional governments with the aim of investigating human rights violations and abuses committed by predecessor regimes. The issue of reparations emerged strongly from the work of such commissions.

2. It needs to be noted that some South American governments have accepted and implemented recommendations for reparation in countries that, in many respects, face similar economic constraints to those of South Africa. Their commitment to reparation is thus of particular significance.

Argentina

3. In May 1987, the Law of Due Obedience (Law No. 23521) created a presumption that low-and middle-ranking officers as well as most officers of higher rank acted under superior orders and duress and could not, therefore, be prosecuted for human rights abuses.³⁵ This was widely viewed as compromising the initiatives of the Argentine National Commission on the Disappeared .^{3 6} In October 1989 the new President, Carlos Menem, decreed a general pardon^{3 7} of military personnel and civilians convicted of military or politically-motivated crimes, and senior o fficers facing charges for abductions. Initially the pardon excluded certain named leaders, but it was extended in December 1989 to cover all those convicted.

4. H o w ever, such amnesties did not preclude the possibility of victims and families of victims instituting civil claims. In addition, a number of laws were passed providing for reparations to compensate victims of human rights violations.^{3 8}

a Law No. 24 411 (Argentina, 7 December 1994) provided for monetary reparations for families of the disappeared and killed. Victims had to have been listed in the report of the National Commission on the Disappeared or have been subsequently reported to the government ’s Human Rights Office (which requires verification through mention in the media, a human rights report or court documents). The amount of the award was a one-time payment to the family of $220 000 paid in state bonds. The amount was determined with reference to the civil service pay scheme and equivalent to 100 months at the salary level of the highest-paid civil servant.

b Law No. 23 466 (Argentina, 1987) granted a pension of $140 per month to children of the disappeared (until they reached the age of 21 years). The estimated cost to the state of these reparations is between $2 and $3 billion.

c Law No. 24 043 (Argentina, 11 May 1994) provided monetary reparations for those imprisoned for political reasons or forced into exile. The law applied to political prisoners held without trial; those who had been ‘temporarily disa p p e a red’, and whose case was reported to the media, to the truth commission or to a human rights organisation at the time, and to those arrested and sent into exile by the authorities. The award amounted to the equivalent of the daily salary rate of the highest-paid civil servant for each day the victim spent in prison or in forced exile. The award was made in a one-time payment of state bonds and could not exceed $220 000. If the victim had died while in prison, his or her family was entitled to the same daily rate up until the date of death plus the equivalent of five years at the same rate up to a total of $220 000. If the victim had been seriously wounded while in prison, his or her family was entitled to the daily rate plus the equivalent of 3.5 years at the same rate, up to a total of $220 000. The estimated cost of these reparations to the state was approximately $500 million.

d Non-monetary reparations consist of:

i . the creation of new legal category of ‘forcibly disappeared’, which holds the legal equivalent of death for purposes of the law (allowing the processing of wills and closing of estates) while preserving the possibility of a person’s reappearance (Law No. 24 321, Argentina, 11 May 1994);

ii. a waiver of military service for children of the disappeared, and

iii . housing credits for children of the disappeare d .

5. While the law sought to compensate for the injuries suffered by unlawfully detained persons, a number of constraints prevented many individuals from benefiting in practice. For example, victims were required to corroborate a period of detention by producing an arrest order and an order of liberty (issued by the executive). However, the military government refused to acknowledge the abductions and the new government failed to obtain disclosure of many of the necessary facts required to corroborate such cases.