South African obligation under international law to prosecute and punish perpetrators of gross human rights violations and to provide compensation for victims

Moller, Cord-Hendrik

South African obligation under international law to prosecute and punish perpetrators of gross human rights violations and to provide compensation for victims

Master Thesis

2014-07-30

Publisher

University of Cape Town

Department

Department of Public Law

Faculty

Faculty of Law

Abstract

Countries undergoing a transitional process face multiple problems and challenges. The process of transformation from a dictatorial, anti-democratic or authoritarian state into a constitutional democracy which respects the rule of law and the fundamental human rights of its citizens is a difficult and strenuous one. Often equipped with only limited financial resources, many newly elected, democratic governments find themselves confronted with a variety of urgent problems waiting to be resolved: the civil service and the judiciary need to be restructured or reformed, jobs must be created for the hundreds of thousands of unemployed, the economy must be put back on the right track and the poor have to be provided with housing, food and health care. While the extent and nature of these and other challenges naturally vary considerably, depending on the circumstances and the specific situation of the state concerned, there is one issue which has to be faced almost inevitable by every transitional society: the question of how to deal with its own troubled past. Broadly speaking, there are three different approaches for dealing with a burdensome past. Firstly, there is the option to move on, to focus on the future and simply to forget the conflicts of the past. This option is generally characterised by a general amnesty for the perpetrators of the old regime, shielding those who committed atrocities and gross violations of human rights from any criminal prosecutions. Spain is probably the most prominent example for a country having chosen this way but amnesty laws have also been passed, inter alia, in Argentina, Brazil, Chile, Guatemala, Sierra Leone and Uruguay. Secondly, there is the option to prosecute and punish gross human rights offenders and to hold accountable the members of the old regime. In Greece for instance, 18 Generals were convicted for high treason only months after the end of their military dictatorship. Ethiopia is another example for a country having opted for this approach while Rwanda has decided to reappraise its gruesome past by a combination of international and national criminal prosecutions. Finally, there is the option to employ alternative mechanisms and procedures like truth commissions and other non-penal measures. This is, so to speak, the middle course between the two extremes of general amnesties and criminal prosecutions. Numerous truth commissions have been set up so far in countries as different as Argentina, Chile, Guatemala, Timor-Leste, Morocco, Sierra Leone or South Africa, just to mention the most prominent examples. As divergent as these commissions in each of these different countries might have been, they all were established to investigate and verify past human rights violations, to give victims of grave human rights abuses a forum to tell their stories and to acknowledge officially what happened during certain dark and painful periods in their respective countries' histories. This option tries to strike a balance between the need to reappraise a country's past on the one hand and the necessity to preserve its still young and vulnerable democracy on the other.

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