Human rights lawyer George Bizos defended Nelson Mandela, Govan Mbeki and Walter Sisulu at the Rivonia treason trial of 1963/64. His family came to South Africa from Greece as refugees from Nazi occupation, and he was involved in the formation of the Truth and Reconciliation Commission after apartheid.
When did South Africans start to discuss the fate of those who had violated human rights?
As apartheid was obviously about to come to an end, there was debate within South Africa, particularly in the ANC, as to what should happen to murderers, torturers, abductors. Then there were those responsible for forced removals and the implementation of apartheid. Three options were considered: Nuremberg-type trials, Chilean-style blanket amnesty, and collective amnesia along the lines of what had been tried in Argentina.
What was decided?
First, that we should devise a structure in order to grant amnesty. But certain principles would govern this amnesty. Secondly, amnesty would be on condition of full disclosure of all the facts. It would be granted for acts committed in order to achieve a political objective, not some outrageous motivation such as racial hatred or to settle old scores. Third, every act should have been proportional to the objective at the time.
An amnesty committee was set up, where applicants could be cross-examined. Amnesty could be granted or denied. It would be possible to prosecute applicants later, but the evidence given in the amnesty hearings could not be used against applicants in a criminal prosecution.
How did you arrive at this?
It was important to have an historical record, to show what happened. Many people in the apartheid regime said that human rights abuses were not sanctioned, there had been a few bad apples and the violations had not been widespread. These false denials would have gone on.
But the historical record shows that there were hit squads, torturers and abductors. The leadership should have known about them, and many in the lower ranks were protected by the leaders.
No one in their right senses could deny this had happened. Although we and our clients had been accused of being liars, propagandists for and willing tools of the enemies of South Africa.
Amnesty applicants in respect of the killing of [anti-apartheid activists] Steve Biko and Matthew Goniwe confirmed the correctness of what we had said all along.
It was also a situation where something had to be offered to those willing to give up power. Otherwise, they would continue to cling to power. They threatened that unless they were covered by amnesties, they would fight on. We knew they had the means to control elections and to prevent any settlement.
In reaching this compromise, how were the interests of victims represented?
There was a political settlement. The Convention for a Democratic South Africa (Codesa) included 22 groups, mainly political parties. Bantustans and leading liberation movements were part of it. But there was no coherent body to express the views of victims.
And the victims accepted this?
The settlement was challenged by the Azanian People’s Organisation, the Biko family and some others. They challenged the validity of the law granting amnesty, which they said deprived them of their right to prosecution and the right to claim compensation from wrongdoers.
The judgement of the court in this case was very important. Judge Ismail Mahomed turned down their application. He said it was regrettable that the victims might not be able to pursue prosecutions, but their need for justice had to be weighed against the need for reconciliation and political transition and the need to uncover the truth.
Some victims complain now that compensation was inadequate and those who did not get amnesty were not prosecuted. It is disappointing that the National Prosecuting Authority has not pursued those who should have been prosecuted.
Did you address crimes committed by those in the liberation movements?
Once they agreed to conditional amnesty, the then government said that it must be an amnesty for all — not just for the government. Some of the acts committed by those in the liberation movement were dealt with.
The leadership of the ANC made a collective application to cover wrongs done by the ANC. That was rejected on the grounds that the perpetrators of abuses should not be granted amnesty as a group.
There were individual acts — carried out by individuals. Amnesty could not be given for nameless crimes. They never did reapply. This is a serious concern. Justice was not done.
Is it enough just to tell the truth? Many of those who applied for amnesty did not do so out of remorse for what they had done.
It’s a serious concern, but the answer is that justice is never perfect. All the different terms — retributive justice, restorative justice — all the adjectives used to describe justice seem to indicate that justice is not absolute.
One had to think, in a highly politicised situation, of what was morally justifiable. How many more innocent people would have been killed if we had not settled? You need to compromise.
But you did not know for certain that they would cling on.
Shortly before the compromise was agreed, at the end of 1993, representatives on both sides, particularly the security forces, threatened that the “men” would not accept it. This was taken to be a real threat.
Was there pressure from abroad?
There was no foreign pressure. We reached a settlement because we believed it was the right thing to do.
The world has now changed and international law has changed considerably. These kinds of amnesties may not be an option now.
International law is to be welcomed, particularly because leaders who have committed serious crimes can be tried. One welcomes the establishment of the International Criminal Court, but regrets the lack of United States support.
I believe that the international system does not necessarily exclude the domestic system. If, for instance, the people of the country are willing to hand over suspects like [Slobodan] Milosevic and Charles Taylor, that means they have made their own decision.
But in the case of Taylor, would he have left Liberia if amnesty had not been granted? It’s not clear-cut. It depends on the circumstances. If you look at what they have done in Northern Ireland, for instance, it’s not an amnesty. It is a form of conditional release, which is akin to what we did here.
You are still in contact with some of the victims. What do they say?
The victims wanted to know the truth about what had happened. Most find it difficult to accept, for example, that the perpetrator is now the head of a private security company and drives a luxury car while the victims still live in poverty.
This contrast shows the manifest injustice of it. But it may have to be that the good of the many prevails over the good of the individual. I’m sorry to say that, but that is the reality.
So, is South Africa a good model for political transformation? Should Zimbabwe follow this example?
South Africa is a good model. Yes, they must consider the solution we found.