Firstly, the closed victims’ list policy is contrary to the Universal Declaration of Human Rights. Article 8 states: “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.”[3] Next, a closed victims’ list violates the International Covenant on Civil and Political Rights. Article II, section 3(a) reads: “Each State Party to the present Covenant undertakes: to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.”[4] Under the current policy, thousands of victims of gross human rights violations pursuant to the Promotion of National Unity and Reconciliation Act criteria would be left without an “effective remedy.” The closed victims’ list policy also runs against recent interpretations of the Rome Statute of the International Criminal Court, which defines apartheid as a crime against humanity and provides for reparations for victims of such crimes—including restitution, compensation and rehabilitation.[5]

Similarly, the Inter-American Commission of Human Rights (IACHR) recognizes the right of all victims of human rights violations to compensation.[6] The Inter-American Court of Human Rights has held that “in cases of human rights violations the duty to provide reparations lies with the State, and consequently while victims and their relatives must also have ample opportunities to seek fair compensation under domestic law, this duty cannot rest solely on their initiative and their private ability to provide evidence.”[7] A closed victims’ list benefits only the group of victims who were able to provide evidence of their suffering to the TRC and denies other victims the opportunity to seek reparation.

Furthermore, the IACHR advises that an administrative reparations program “should reflect the outcome of an open and transparent process of dialogue and consultation with civil society and the state institutions involved,” as this “will lend legitimacy to the policy and ensure its continuity, irreversibility and institutionalization.”[8] The Commission notes that the State must create opportunities for victims and their representatives “to participate in the decisions regarding implementation of mechanisms and policies on reparation” and “to explain their views and inform the State of their specific needs”—specifically to “prevent measures that could be discriminatory.”[9] The South African government has denied such a process to thousands of victims in promulgating these discriminatory regulations without consulting victims or those who represent their best interests, such as members of the SACTJ. In his response to the SACTJ’s request for information, Mr. Thapelo Mokushane of the DoJ’s TRC Unit stated that the government saw no need to notify victims, undertake a public information process, or consult with civil society organizations before the regulations were drafted. This position is plainly in conflict with the right to public participation discussed above, especially in light of the widespread lack of knowledge in the general public regarding the TRC process, its recommendations, the President’s Fund and its purpose, and the closed victims’ list policy. This lack of knowledge is exacerbated by the fact that the government has yet to release a popular version of TRC report.

Moreover, in the IACHR’s view, a State must be especially vigilant of respecting the rights of groups whose human rights are most at risk, including women, children, indigenous peoples, social leaders, and organizations that defend human rights. These rights include “the right to adequate reparation for the harm caused, through individual measures of restitution, compensation and rehabilitation.”[10] These are precisely the groups of victims that will be most affected by the South African government’s closed victims’ list policy. In fact, these were also the groups that the TRC specifically noted were underrepresented in the TRC’s Volume 7 list.[11]

In this regard it is worth highlighting that even those who did participate in the proceedings of the TRC may not be represented in the victim lists that are now being accorded such weight by the Government. Women victims are but one such group.  Their plight exemplifies the realities facing so many of the unrecognized victims.  Although special hearings were held to focus on women’s issues, and women were generally represented in testimony over the full course of the hearings, women victims and their personal stories of abuse rarely became part of the public record. The reasons for this are many, but the realities and potential impact going forward are profound: “over three-quarters of the women’s testimonies and 88 per cent of the men’s testimonies were about abuses to men. Only 17 per cent of the women’s testimonies and 5 per cent of the men’s were about abuses to women, with the remainder about abuses to women and men.” Sexual abuse, in particular, was rarely discussed. As a result, women and the crimes committed against them were most assuredly under-reported and are under-represented in the TRC’s victim tallies. Given these facts and the other well-known inadequacies of the available victim lists, they should not be used to define the present and future. [12]

It is telling that in countries with less capacity and resources than South Africa, reparations and other victims’ assistance programs involving health care have been offered to victims without requiring participation in a truth-seeking process or being officially listed in a truth commission report. In Sierra Leone, victims of sexual violence and children were not compelled to participate in the truth-seeking process and were still able to access government assistance.[13] In Nepal, while a caste-based system of discrimination exists, the State has offered health care benefits to victims in the absence of a truth-seeking process or a closed victims’ list.[14] In Peru and Chile, community support groups and group therapies have been implemented, and emphasis in the reparation plan has been placed on training community members to deliver this type of mental health service.[15]

Countries such as Brazil, Peru, Guatemala, and Sierra Leone, in order to fulfil their obligation to reach and register all victims of human rights violations, have established ongoing victim registration procedures.[16] In other countries that have limited the victim registration periods such as Argentina and Chile, these procedures are frequently reopened or extended.[17] In Chile, twenty years after the restoration of democracy and fifteen years after the registration of victims of enforced disappearance and killings had been finalized; the government reopened the victim registration process. In general, the international community recognizes that truth commissions are only capable of registering a small fraction of victims. In Argentina, Chile, Peru, Guatemala, and Sierra Leone, victim registration processes were undertaken after the commissions published their reports, consistently exceeding the number of victims registered through the truth commission process.[18]