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As can be seen, the Sub-Commission separates justice from reparations, but nonetheless
asserts the importance of justice and does not diminish the importance of compensation or
rehabilitation. It merely places these in a different universe of actions, and this perhaps can
lead to conceptual confusion.
Very simply, the separation can lead to a shopping basket notion of reparations. The right to
know separated from the right to justice can be minimised into Truth Commissions, where all
that mostly happens is that history will be recorded14. The shopping basket approach must be
avoided at all costs, which, in fairness to the Sub-Commission is not its intent, but the lack of
a clear statement that the need to repair requires all elements to be present leads to confusion
and frequently plays into the hands of politicians needing to make pragmatic decisions for the
purposes of peace.
Justice is perhaps the most important component, but equally the most difficult to achieve. As
all commentators have observed, the price of peace is usually some form of amnesty or
impunity 15 . The avoidance of justice is frequently the only way in which peace may be
fashioned, especially in countries where human rights violations have become epidemic. This
was clearly the case in the transition from Rhodesia to Zimbabwe, and also the case in the
ending of the civil war of the 1980s. A modified version is also evident in the decision by the
new South African State to adopt a Truth Commission approach, but it was clear that there
would be prosecutions for gross human rights violations. Even this modified position is now
under threat with the statements by several senior statesmen that a general amnesty should be
declared. So the avoidance of justice generally follows the requirement for peace, and the
adoption of a reconciliation approach. Reconciliation always seems sensible at the point of
peace, but inevitably leads to long-term structural problems, as I shall show later.
Reparations, as restitution, compensation and rehabilitation, may be more easily accepted by
the state, but is not without its problems. Restitution may just not be feasible in situations of
epidemic violence. A small example from Zimbabwe may illustrate this. During the
Liberation War of the 1970s, tens of thousands of rural people lost their homes, their
possessions and their livestock, and, whilst no-one has attempted to calculate the loss in
economic terms, the costs are enormous and still bitterly felt by the rural people. No attempt
See Hayner (1996), “Commissioning the truth: further research questions”, Third World Quarterly, 17, 19-29; Hayner,
(1994), “Fifteen Truth Commissions - 1974 to 1994: A Comparative Study”, Human Rights Quarterly, 16, 597-655.
15
See Lutz (1989), “After the Elections: Compensating Victims of Human Rights Abuses”, in E.L. Lutz, H.Hannam, &
K.J.Burke, (eds), “New Directions in Human Rights”, Philadelphia: University of Pennsylvania Press; see also UN [1997], The
Administration of Justice and the Human Rights of Detainees: Question of the impunity of perpetrators of humanrights
violations (civil and political), Revised final report prepared by Mr. Joinet pursuant>to Sub-Commission decision 1996/119,
United Nations. Economic and Social Council. Commission on Human Rights. SubCommission on Prevention of Discrimination
and Protection of Minorities. E/CN.4/Sub.2/1997/20/Rev.1
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