Jeremy Allen

How may a society, in a morally defensible way, confront a past of injustice and suffering, and seek to break the spell of violence and disregard for human life? I begin by demonstrating the relevance of this question to the South African Truth and Reconciliation Commission, and I draw attention to André du Toit’s longstanding interest in ways in which truth commissions may function to consolidate political change. In the second section of the article, I argue that truth commissions should be regarded as a defensible moral compromise between the values of justice and social unity, and I criticize claims that truth commissions promote transitional justice, when that is understood as a distinctive conception of justice that emerges in circumstances of regime transition. In the third section, I criticize the claim that truth commissions are not a moral compromise at all but embody a superior, restorative conception of justice. I conclude by showing why retribution is required by criminal justice, and why truth commissions must be seen, not as an end in them selves, but as institutions whose function is to emphasize the importance of the rule of law, normal criminal justice, and legal recognition.

This article continues the themes developed in a previous paper looking at reparations for past wrongs in post-colonial Australia. It narrows the focus to examine the scope of the law of tort to provide reparations suffered as a result of colonisation and dispossession, with particular emphasis on the assimilation policies whose legacy is now known emphatically, although it ought not be exclusively, as the Stolen Generations. The search for more than just words is particularly topical in light of the Australian Prime Minister's formal apology in early 2008. This highly symbolic step must not lose momentum. That momentum could be both political and legal. In the latter context, we explore here the concept of alien tort, in the light of current Australian tort jurisprudence, which has thus far proved inadequate to achieve compensation for the harms suffered. Taking a comparative approach, procedural and substantive developments are to better deliver justice consistent with community values. In particular, the greater acceptance of psychological harm as actionable tortious conduct in Canada and the United States is examined. The article further examines the scope for stolen children to bring suit under the US Alien Tort Claims Act 1789. While the Australian government enjoys sovereign immunity in the courts of the United States, non-state organisations such as churches that were complicit in the forcible removals may be subject to United States jurisdiction wherever they have a presence in that country. The procedural and substantive elements of such a claim are discussed. In particular, the relevant cause of action, the issue of forum non conveniens and the statute of limitations will be analysed to map out whether a claim could be developed and successfully prosecuted. © Springer Science + Business Media B.V. 2009