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ICTJ established an office in Cape Town in 2004 to facilitate more extensive work in southern Africa and the region. Since then, ICTJ has been instrumental in advocating for transparency and victim participation in the presidential pardons process for political offenses, challenging prosecutions policies that provide de facto amnesties for alleged perpetrators, and supporting victims' claims in a lawsuit against multinational corporations accused of supporting the apartheid regime.

Background

In 1994, South Africa emerged from more than four decades of apartheid following the country’s first democratic elections. The apartheid era had been marked by widespread political violence and human rights violations, including massacres, killings, torture, lengthy imprisonment of activists, and severe economic and social discrimination against black South Africans. Nelson Mandela’s release in 1990 after 27 years of imprisonment resulted in negotiations between the apartheid government and the African National Congress (ANC), which produced relatively peaceful elections and the transfer of power to the former liberation movement in 1994.

In 1995, following 18 months of intense debate and preparation, the South African Parliament passed the Promotion of National Unity and Reconciliation Act, mandating the establishment of the Truth and Reconciliation Commission (TRC), chaired by Archbishop Desmond Tutu and his deputy, former ICTJ president, Alex Boraine. Hearings began in April 1996, and in October 1998 the TRC published a five volume report which included testimony from over 22,000 victims and witnesses, more than 2,000 of whom testified before public hearings. (Two additional volumes were published in 2003, following the finalization of all TRC activities.)

The most controversial aspect of the TRC’s mandate was the offer of "amnesty for truth" to perpetrators of human rights abuses who were willing to confess their crimes. A general commitment to an amnesty had been included in the December 1993 Interim Constitutuion. These developments raised concerns about the perpetuation of impunity, given the prosecution of few persons implicated in human rights crimes in the past decade. The provision of a conditional amnesty was predicated on the prosecution of those who did not qualify. A handful of investigations and prosecutions had been initiated in 1994 and 1995; some were completed and others suspended, although the 1996 conviction of former police counter-insurgency commander Eugene de Kock remains one of the few markers of success.

In November 2002, South Africa's principal victims' organization, the Khulumani Support Group, sued 23 multinational corporations, including Ford Motor Company, Daimler-Chrysler, General Motors, and IBM in a United States court, seeking civil damages for the role these corporations played in aiding and abetting the apartheid regime’s infliction of mass human rights violations. Khulumani alleged that, with the support of these corporations, "the apartheid government committed extra-judicial killing, torture, sexual assault, prolonged arbitrary detention, and crimes against humanity."

In October 2007, apartheid victims and human rights organizations achieved a major victory: in a surprise landmark ruling, the U.S. court allowed them to present their claims for compensation. The South Africa’s Minister of Justice and Constitutional Development had initially opposed the Khulumani Support Group class action lawsuit citing concerns that the lawsuit interfered with state sovereignty and South Africa’s efforts to promote reconciliation. However, in September 2009 the South African government informed United States District Court Judge Shira Scheindlin that it considered the United States court to be an appropriate forum to hear the victims' claims.

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ICTJ Activity

Presidential Pardons for Political Offenses

During 2008–2009, ICTJ and a coalition of six other civil society organizations, including the Center for the Study of Violence and Reconciliation, Khulumani Support Group, Institute for Justice and Reconciliation, South African History Archive, Human Rights Media Centre, and Freedom of Expression Institute, with instructing attorneys from the Legal Resources Centre advocated for transparency and victim participation in a pardons process established by former President Thabo Mbeki, titled the Special Dispensation for Presidential Pardons for Political Offences process. Although Mbeki publicly described the process as a means for resolving “the unfinished business of the TRC,” the Pardons Reference Group (PRG), established by the pardons process, conducted secret proceedings entirely absent of victim representation and participation by other interested parties. Following a March 13, 2009 letter from interim President Kgalema Motlanthe's lawyer indicating plans to proceed with the process, ICTJ and the civil society coalition took the case to court as a matter of urgency.

In April 2009, the North Gauteng High Court issued an interim interdict restraining the President from granting pardons to political perpetrators without first consulting victims or publicly disclosing details of the process. In early 2010, South African Constitutional Court, in a unanimous appeals judgment, held that the exclusion of victims from the special dispensation process, which sought to promote nation-building and national reconciliation, was irrational and contrary to the rule of law. This landmark decision has been lauded as one of the most significant affirmations of victim’s rights and the rule of law in post-apartheid South Africa, and is projected to have a major impact on the future of presidential pardons as exercised in South Africa and internationally.

Prosecutorial Indemnity

In 2007–2008, ICTJ played a central role in preparing a legal challenge to amendments to the Prosecution Policy of the National Prosecuting Authority, which provided de facto amnesty, and effective impunity, for perpetrators convicted of apartheid-era crimes who were refused from or had failed to apply for amnesty from the Truth and Reconciliation Commission (TRC).

ICTJ and its partners successfully challenged this back door amnesty: On 12 December 2008, the Pretoria High Court declared the amendments unconstitutional. As a result, prosecutors may no longer resort to amnesty-type criteria for purposes of declining to prosecute apartheid-era offenses, and the NPA must comply with its constitutional obligation to prosecute crimes for which sufficient evidence exists. Since publication of the Court’s judgment, ICTJ has continued to advocate for the prosecution of key cases from the past, and prosecutors have agreed to pursue cases of enforced disappearances, murder, and torture. ICTJ was joined in this litigation by the Centre for the Study of Violence and Reconciliation and the Khulumani Support Group and instructing attorneys were provided by the Legal Resources Centre.

International Corporate Accountability

Having previously not played a role in the Khulumani Support Group class action lawsuit against 23 multinational corporations, on 25 November 2009, ICTJ took the decision to file an amicus brief supporting the government’s position to have the case heard in the United States court, citing a report published by the Truth and Reconciliation Commission which states that "to the extent that business played a central role in helping to design and implement apartheid policies, it must be held accountable".

The government’s decision to support the Khulumani litigation has been praised by human rights activists as a significant step toward meaningful reparations and accountability—both which are indispensible components of an integrated approach to transitional justice. ICTJ has asked the South African government to follow-up this positive step by working with victims to carry out other reparations recommendations made by the South Africa Truth and Reconciliation Commission.

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(Updated June 2010)