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ICTJ Activity

In the second half of 2004 the ICTJ established an office in Cape Town, enabling more extensive work in South Africa and the region. Under the auspices of this office the ICTJ has continued its flagship Transitional Justice Fellowship program, which it first launched in 2002. Conducted in partnership with the South Africa-based Institute for Justice and Reconciliation, the program previously spanned a three-to-four-month period. In 2008 the program was replaced by an intensive three-week course.

As part of the ICTJ's continual effort to expand its intellectual base in transitional justice, in spring 2005 the Cape Town office began a rewarding collaboration with the Japan International Cooperation Agency (JICA), hosting a major international conference on "Transitional Justice and Human Security." The conference brought more than 100 experts in both fields from across the globe to Cape Town. Since then a series of seminars on "Transitional Justice and Development in Africa" were convened in Cape Town 2006 and 2007. The final seminar in the series, scheduled for September 2008, will continue to explore the links between the field of transitional justice and development, particularly regarding policies on social and economic justice.

Against the background of its ongoing work on prosecutions, in May 2005 the Center worked with the South African Foundation for Human Rights (FHR) to host a conference for prosecutors from all parts of the world on "Domestic Prosecutions and Transitional Justice" in Johannesburg. The conference focused on building domestic capacity to conduct prosecutions in the effort to address the problem of impunity.

To balance justice and reconciliation and to advocate respect for international law, the Cape Town office has joined other South Africa organizations, such as the Centre for the Study of Violence and Reconciliation, the Khulumani Support Group, and the Legal Resources Centre, to support a claim brought by apartheid victims against the National Prosecuting Authority's policy to provide perpetrators with a potential second amnesty. The South African multi-party Reference Group on the presidential pardon (RG) had granted a three-moth "window of opportunity" from 15 January to 15 April 2008 for applicants to apply for the pardons. The deadline was extended to 31 May 2008. Amongst these applicants are those who were denied amnesty by the TRC, including the former Law and Order Minister under the apartheid government, Adriaan Vlok. The ICTJ, along with the other civil society organizations will continue to monitor the presidential pardon process and undertake the tasks of analyzing some of the cases being considered.

The South African transitional justice process has been extensive. However, in the 10th anniversary year of the production of the TRC's final report, the process is coming under scrutiny, with some in civil society focusing on various gaps in the Commission's work. One criticism is that the TRC process was predominantly inward-looking and largely overlooked the subregional dimensions of mass violations by the apartheid regime. In response to this concern, in 2008 ICTJ is undertaking a subregional study of transitional justice to assess the impact of apartheid South Africa's destabilization of neighboring states. This regional assessment will examine the connections between Angola, Mozambique, Namibia, Zimbabwe, and South Africa, as well as the unique characteristics of the transitional justice experience in these countries. The Cape Town office is partnering with other South African organizations (the Institute for Justice and Reconciliation, the Institute for Democracy in South Africa, and the Centre for the Study of Violence and Reconciliation), as well as leading national organizations in South Africa's neighboring countries to conduct the assessment.

Having worked closely with a range of key actors in the South African transition-from TRC commissioners to victims' groups-ICTJ staff members are particularly well positioned to be of continuing assistance in South Africa. The Center's experience has helped it develop a richly nuanced view of the complexity of the situation and the potentials and limits of truth commission processes in general. This in-depth knowledge and expertise with truth commissions has already had a significant impact on the ICTJ's work in a range of other countries. In addition, the Cape Town office is home to the Africa Gender Coordinator and is working closely with its Gender Unit to include gender in transitional justice as well as raise awareness of gender-based violations. In addition, the work of ICTJ's new Truth Seeking programme is run from our Cape Town Office.

South Africa's transition is an ongoing process. The Cape Town office is committed to assisting efforts to consolidate the remarkable gains of the TRC while also bringing to light the unfinished business of that transition and supporting survivors of apartheid in their ongoing struggle for justice and reparations. The office's priorities will therefore continue to include maintaining a strong programming base in the country and the region, as well as expanding and strengthening our partnerships with relevant national institutions and local and regional NGOs and think tanks.

Click here to contact the Cape Town office, headed by Comfort Ero, ICTJ's deputy Africa director.

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Background

South Africa emerged from more than four decades of apartheid in 1994, with the election of Nelson Mandela as president. The apartheid era was marked by political violence and human rights violations, including massacres, killings, torture, lengthy imprisonment of activists, and severe economic and social discrimination against black South Africans. The release of Nelson Mandela from prison in 1990 advanced negotiations among the government, Mandela's African National Congress (ANC), and others, resulting in the relatively peaceful elections and transfer of power in 1994.

After 18 months of intense debate and preparation, in 1995 the South African Parliament passed the Promotion of National Unity and Reconciliation Act, mandating the establishment of the Truth and Reconciliation Commission (TRC). The Commission was chaired by Archbishop Desmond Tutu and cochaired by former ICTJ president and current Chairman of the Board Alex Boraine. Hearings began in April 1996, and in October 1998 the Commission published and presented its seven-volume report. Testimony was taken from more than 23,000 victims and witnesses, of whom more than 2,000 appeared in public hearings.

The most controversial aspect of the TRC's mandate was the offer of an "amnesty for truth" for perpetrators of human rights abuses who were willing to confess their crimes. It raised concerns about the continuation of an aura of impunity, given the prosecution of few persons implicated in human rights crimes in the past decade. The 1996 conviction of former Vlakplaas commander Eugene de Kock remains the sole marker of success, despite the fact that the "amnesty for truth" deal was predicated on the prosecution of those who did not qualify for an amnesty through the truth commission process.

The TRC's final report was publicly released in early 2003. The government made modest, one-time reparation payments to victims identified by the TRC at the end of 2003. In November 2002 the principal victims' organization, the Khulumani Support Group, sued 23 multinational corporations in U.S. courts, seeking civil damages for the role these corporations played in aiding and abetting human rights violations committed in apartheid South Africa. The businesses listed in the lawsuit chose not to appear before the TRC.Khulumani alleges that with the support of these corporations, "the apartheid government committed extra-judicial killing, torture, sexual assault, prolonged arbitrary detention, and crimes against humanity." The suit was initially dismissed in November 2004, but in April 2005 Khulumani filed an appeal in the U.S. Circuit Court of Appeals for the Second Circuit in New York. In October 2007 apartheid victims and human rights organisations achieved a major victory after a surprise landmark ruling by the U.S. court that allowed them to bring their claims for compensation. This far-reaching judgment has been called a "watershed moment in legal history," since it opened the door for victims of state repression worldwide to hold accountable under the U.S. Alien Tort Statute those who directly and indirectly support such regimes. On 12 May, the United States Supreme Court issued an order stating that the Second Circuit Court of Appeals' judgment from October 2007 stands. The circumstances of the Supreme Court Order are that the Court lacked the necessary quorum of six justices to issue an opinion. Four justices were disqualified, having had to recuse themselves because of either holding investments in or because of having family ties to some of the companies. The Court consequently did not issue an opinion and ordered that the Second Circuit Court decision be affirmed. The Supreme Court order clears the way for the case to go forward, which analysts have hailed as a potential catalyst for the advancement of international human rights law and as a critical test case for the development of global corporate responsibility.

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(Updated May 2008)