TRC Final Report

Volume 6

Section 2

Chapter 3

Subsection 3

BRAZIL AND MALAWI

18.While neither Brazil nor Malawi instituted truth commissions following the transition from dictatorship to democracy, both countries have subsequently recognised the need to provide some form of compensation to victims of human rights abuse.

19. In Brazil, a reparations commission was established in 1995 to provide between US$100 000 and US$150 000 to the families of 135 disappeared individuals. The vast majority of the families decided to accept the money. No other benefits (pensions, health services and so on) were offered. About US$18 million was spent by the Brazilian Commission.

20. Malawi’s National Compensation Tribunal was established in 1996 after the 1994 multi-party elections that followed the 30-year despotic regime of Kamuzu Banda. Although the Tribunal has received over 15 500 claims, only 4566 victims had been fully compensated as of July 2001.⁴⁷

OTHER REPARATION PROGRAMMES

22. Payment of reparations as a consequence of war has long been a customary and/or legal obligation, generally extracted by the winning party. While historically such reparations or compensation tended to be based on collective claims, t h e twentieth century brought an increasing recognition of the rights of individual victims to compensation. In 1977, one of the additional protocols added to the 1949 Geneva Convention recognised the obligation of belligerent parties to pay reparations for acts committed by members of their armed forces .^{4 8}

23. This obligation should be borne in mind when considering the countries in Southern Africa, whose citizens suffered extensive violations of their human rights as a consequence of the South African conflict and whose economies w e re devastated by South Africa’s destabilisation policy during the 1980s.

Reparations arising from World War II

24. Possibly the most extensive and costly reparations programme ever was borne by the Federal Republic of Germany (West Germany) following World War II. Reparations were paid both to victims of state violence (German citizens who suffered human rights abuse at the hands of the Nazi state) and to nationals of occupied territories, the latter assuming the form of both collective and individual compensation. A Reparations Conference in Paris at the end of 1945 agreed on the principle of compensation to victims of Nazi atrocities. Since then, literally billions of Deutsche Mark (DM) have been paid.

25. Inside Germany, for example, a Federal Law on Reparation awarded damages to victims of Nazi persecution according to a range of categories. These categories included dependants of those who died as a result of political persecution, those who suffered lasting physical or mental impairment, those imprisoned or held in concentration camps and those for whom persecution resulted in loss of earning power.

26. A 1952 treaty concluded with Israel acknowledged, ‘that Israel had assumed the burden of resettling many Jewish refugees ’⁴⁹ and thus awarded Israel an amount of DM 3 000 million. Agreements with Western European nations between 1959 and 1964 provided for compensation, ‘for the injury to life, health and liberty of their nationals’⁵⁰. Lesser amounts were paid to Eastern European countries, including compensation for victims of pseudo-medical experiments conducted by the Nazis. Given the extensive displacement of persons as a consequence of the war, West Germany also made a contribution to the United Nations High Commission for Refugees.

27. By 1988, the total sum paid by West Germany in reparations was DM 80.57 billion. Nor is this process complete, as is evidenced by the recent demand and agreement to pay compensation to victims of Nazi forced labour camps.

28. The former German Democratic Republic (GDR) has also paid reparations. While it is not known to what extent East German victims were compensated, in 1990 the GDR offered compensation to the World Jewish Congress. Japan also agreed to pay reparations, in terms of the 1951 Peace Treaty with the Allied Powers, including reparations to former prisoners of war.

29. More recently, however, reparations have been off e red or demanded not just f rom those countries that emerged defeated, but also for those victims who suffered at the hands of the Allied Forces or even other parties. In 1988, the United States (US) agreed to compensate its own citizens and permanent residents of Japanese descent whose rights had been violated by being interned during the war. Symbolic reparations were also off e red by way of an apology from the US P resident and Congress. Swiss banks have agreed to pay compensation to people of Jewish descent whose assets were unjustly misappropriated.

Other examples of reparation

30. The following are other recent examples of reparation or calls for reparation :

31. As a result of the Gulf War in 1990, the United Nations Compensation Commission has already paid out billions of dollars in reparation to victims, including corporations and foreign governments. The revenue was obtained from levies on Israeli oil production .

32. In the Philippines, the victims of human rights abuses brought a class action suit against the estate of former President Ferdinand Marcos.⁵¹ The US Federal Courts awarded compensation amounting to millions of dollars to victims of disappearances, torture and unlawful detention, for which the former President was held personally liable.

33. There was a call for reparations for the African slave trade and the consequences of European colonialism at the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance at Durban in September 2001 .