Anton Katz
IN March 1976, Joelito Filartiga was tortured to death by Pena-Irala, the inspector general of police in Asuncion, Paraguay. Filartiga and his family were opposed to the government of Paraguay. His father, Joel, and sister, Dolly, went to the United States and applied for political asylum. Dolly later discovered that Pena- Irala was living in Brooklyn, New York, and sued him for wrongfully causing her brother’s death by torture. She sought $10- million in damages.
The cause of action was based upon the United Nations Charter, the Universal Declaration of Human Rights and other declarations, documents and practices constituting customary international law of human rights. The US Court of Appeals found that the law of nations prohibits an act of torture committed by a state official against one held in detention. In granting the damages, the court concluded by stating that “for purposes of civil liability, the torturer has become – like the pirate and slave trader before him – hostis humani generis, an enemy of all mankind”.
South Africa is a party to the United Nations Charter and supports the provisions of the Universal Declaration of Human Rights. In January 1993 South Africa signed the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Although it has not yet ratified or acceded to the convention, it is nevertheless bound to comply with the objects and purposes of the provisions of this treaty pending ratification.
Article 14 provides that state parties to the convention shall ensure that their legal systems enable victims of torture to obtain redress, and provide them with an enforceable right to fair and adequate compensation. Similarly, the Universal Declaration of Human Rights (1948) states: “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental right granted him by the constitution or by law.”
Torture and murder are violations of international law, which provides that victims of torture are entitled to compensation for the wrongful act perpetrated against them. The US court recognised this principle in the case of Filartiga. Despite the fact that the perpetrator and the victim were both Paraguayan nationals – and thus aliens for the purposes of US law – and the torture occurred in Paraguay, the court found in favour of the victim.
While people in South Africa continue to deal with the brutal past, two points arise for consideration. First, the Constitutional Court did not address the Filartiga case, and did not mention the Torture Convention or the Universal Declaration of Human Rights, when it interpreted the Constitution to determine whether a granting of amnesty by the Truth and Reconciliation Commission was constitutional. Is there an explanation for this omission?
Second, the truth commission’s committee on amnesty ought to scrutinise applications for amnesty carefully, taking into account the international law implications. The possibility exists that South African victims of torture may successfully sue South African torturers for damages in the US court for torture committed in South Africa and elsewhere. Indeed, perpetrators of torture can attract civil liability (at least in the US court) for their acts despite grants of amnesty by the truth commission.
Advocate Anton Katz teaches international law at the University of Stellenbosch
ENDS