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Hastings International and Comparative Law Review

Abstract

Judicial review in the United States is a strong and effective remedy. However, it is a limited remedy because the courts act only when asked and because courts have developed an entire jurisprudence of reasons why they cannot hear cases. For past violations there is no constitutional remedy; and there is no constitutional obligation upon Congress, or upon the States, to provide remedies, or to compensate victims for violations of their rights.

In contrast to the U.S. Constitution, various comprehensive human rights and regional human rights treaties explicitly include, in some form, the right to a remedy for violations of the rights enumerated therein. This article addresses a source of international human rights law that strongly suggests that states have an obligation to investigate and prosecute the crimes of a former regime. The potential conflict between international human rights norms and South Africa's truth and reconciliation commission asks us to critically examine and scrutinize whether South Africa's truth and reconciliation commission constituted an "effective remedy" for the gross human rights violations committed during apartheid.

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