TRC Final Report

Volume 6

Section 2

Chapter 2

Subsection 5

Decisions of international human rights bodies supporting the right to reparation

30. The creation of numerous bodies and procedures within the UN system has created a powerful mechanism for (amongst other things) the investigation of reported violations of human rights, the holding of public hearings, and recommendations on international policy. Yet none of the UN’s permanent treaty or internal bodies is legally empowered to give concrete effect to reparations or the bringing of perpetrators to book.

31. Despite this, several regional bodies established to promote and protect human rights do have such competence. European and Inter-American bodies in particular have developed a rich jurisprudence around international human rights and humanitarian law generally, as well as on specific issues such as reparation .

32. The Inter-American Commission on Human Rights (IACHR) is, for example, empowered to investigate complaints and to effect the amicable settlement of disputes. In two well-publicised cases, the IACHR brokered a settlement where damages were claimed from Ecuador for the disappearance of two young men. Ecuador admitted liability and agreed to implement the following reparations :

a payment of a lump sum US$ 2 000 000 settlement without prejudice to civil remedies against the perpetrators;

b an undertaking to conduct a definitive and complete search of the area where the boys allegedly disappeared and to provide all necessary and reasonable logistical support to carry out the search, including training men to recover the bodies;

c an undertaking not to interfere with any ceremonies commemorating the deaths of the youths;

d an undertaking to rehabilitate the reputation of the family by publicly affirming that the young men were not guilty of crimes under Ecuadorian law or morality;

e an undertaking properly to investigate, prosecute and punish the perpetrators of the violation of the human rights of the deceased and their families.

33. This case study is a good example of how a package of recommendations (such as the RRC has proposed in South Africa) can be holistically combined rather than quantifying the violations committed against the victims or their families to a sum of money alone.

34. The IACHR has made important contributions to the growing body of jurisprudence with respect to formulating reparation policy as an alternative to monetary compensation. It has, in a number of cases, recommended the reform of the military court system, methods of investigation (Columbia), prosecution and the punishment of violators (Tarcisso Meduna Charry v Colombia), the adoption or modification of offending legislation, and guarantees for the safety of witnesses. Similarly, the South African Commission has made many re commendations in respect of institutional reform .²⁸

35. The IACHR has been particularly concerned with an important area of international jurisprudence relating to the issue of impunity: not only as it concerns past violations, but also to the prospect of violations that may take place in the future. This has a direct bearing on the kinds of reparation needed to remedy the situation. In its report on the Ley de Caducidad in Uruguay, the IACHR concluded that the impunity granted to officials who had violated human rights during the period of military rule was in breach of the American Convention on Human Rights. A similar finding was made in respect of Argentina’sLey de Puncto Final (the ‘full-stop law’) and Presidential Pardon No. 1002. In this respect, the South African Commission’s recommendations in relation to prosecution^{2 9} need to be seen as being an important part of reparation policy in that they address the issue of the non-repetition of violations by seeking to put an end to a culture of impunity.

36. Where settlement is not possible, the IACHR refers disputes to the Inter-American Court on Human Rights. In Valesquez Rodriguez v Honduras 1 9 8 8 and Godinez Cruz v Honduras 1989, the Inter-American Court of Human Rights found the government of Honduras responsible for the disappearances of two young men at the hands of the military. Despite the argument by Honduras that the Court was limited to awarding the most favourable benefit under Honduran law for accidental death, the Court decided that international law required restitution of the status quo ante (before the violation occurred) where possible. Another case where full compensation was required was in the Barrios Altos case.^{3 0} In Loayza Tamayov Peru, the Court agreed that reparations could be granted, based on identifiable damage suffered as a result of a violation that included lost opportunities (proyecto de vide or ‘enjoyment of life’). It should be noted that compensation proposed b y the RRC does not include the notion of ‘lost opportunities’ addressed in this and other international human rights instruments and law. In this respect, the individual compensation proposed by the RRC is a far more modest amount.

37. The former European Court of Human Rights gave a more restrictive interpretation to Article 50 of the European Convention for Human Rights and Fundamental Freedoms, which provided, inter alia, for adequate compensation for human rights violations. This hampered the evolution of remedies in the E u ropean system. However, since the creation of the new European Court of Human Rights on 1 November 1998, the Court has expressed its opinion^{3 1} t h a t , in terms of the Convention, the state should do more than financially compensate the victim. Rather it should effect restitution so that the victim is restored to the position s/he held before the violation.

38. More recently, the Organisation of African Unity (OAU) established a system designed to ensure adherence to human rights. In 1986, the OAU issued an African Charter on Human and People’s Rights. This Charter established an independent African Commission on Human and People’s Rights, which was entrusted with, inter alia, the promotion and protection of human rights in African states as well as interpretation of the Charter.

39. In June 1998, the OAU went on to adopt a draft protocol for the establishment of an African Court on Human Rights. Article 26(1) provides that, if the Court should find that a violation of a human or people’s rights has been committed, it should make appropriate orders to remedy the violation, including the payment of fair compensation or reparation .