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Letter to President de Klerk

The following letter was sent to State President F.W. de Klerk by Africa Watch, on October 23, 1992. At that time, legislation which would empower the president to forgive politically-motivated crimes had just been rejected by the Indian house of South Africa's tricameral parliament, but the State President was proposing to bring it into law in any event by decree of the little-used President's Council. Africa Watch urged the president not to take this step.

Dear President de Klerk:

Africa Watch is extremely concerned at the recent proposals by your government to grant a general amnesty to all who have committed political offenses. We do not believe that an amnesty law which allows those who have committed serious crimes in the name of apartheid to receive complete immunity from the consequences of their actions, with no condition other than a review by a secret commission and the publication of a list of names, can make any good contribution to the process of transition in South Africa. We urge you to accept the verdict of parliament, which rejected your proposed legislation, and not to pass the measure through the mechanism of the president's council.

We believe that no decision can be made to forgive crimes before the truth of those crimes are known. Moreover, Africa Watch maintains that an amnesty for those who have committed the most serious abuses is invalid under international law in any circumstances. The implications for the character of a future regime if this legislation becomes law are enormous and sinister: if South Africa is to move forward to a future of reconciliation and nation-building, it must face more honestly the question of accountability for past abuses.

The question of accountability has become increasingly important around the world in recent years, as different states attempting to make a transition to democracy have struggled to achieve a balance between retribution and forgetfulness in the interests of national reconciliation. Some of the most notable efforts to come to terms with a brutal past have been made in the Latin American countries recovering from decades of military dictatorship, where commissions have been appointed to unearth the truth of their terrible histories, and - in some cases - prosecutions have been undertaken to mete out justice to the perpetrators and grant a measure of compensation to the victims. Americas Watch, which is with Africa Watch a part of Human Rights Watch, has monitored and commented on these efforts, and has developed its own policy on accountability for past abuses.1 The report which we attach, "Accounting for the Past: The Lessons for South Africa from Latin America," offers a comparative study of Latin American policies on accountability, and aims to highlight the lessons that may be relevant in the South African context.

The most important of those lessons is that, if a country is to come to terms with its past and successfully turn its attention to the future, it is essential that the truth of the past be officially established. It is impossible to expect "reconciliation" if part of the population refuses to accept that anything was ever wrong, and the other part has never received any acknowledgment of the suffering it has undergone or of the ultimate responsibility for that suffering. In South Africa it is particularly illusory to expect that a transition to a new multiracial society will be achieved without acknowledgment by those who supported and benefitted from government policies - overwhelmingly white - of the atrocities that were committed in the name of apartheid; or without the opportunity being given to those who were the victims of atrocities - overwhelmingly black - to testify about their experience before a body that is impartial and authoritative, and to see human rights violations comprehensively investigated and officially condemned.

Human Rights Watch believes that this process of acknowledgment is of primary importance in achieving accountability. At the same time, the beneficial effect of acknowledgment may be greatly increased by prosecutions of those guilty of the crimes that have been investigated, and by the allocation of individual responsibility that results. The experience of Latin America shows that it may be difficult to achieve a full legal accounting for violations, especially where there is a degree of continuity from the old regime to the new, but that it is possible to achieve accountability at the highest levels for even the worst crimes, if the political will is there. The very process of subjecting previously all-powerful figures to the full scrutiny of a court of law is a dramatic step towards reestablishing in the eyes of the whole population the credibility of the legal system, the independence of the judiciary, and the ability of a new government to deal with abuses of power without the need for extra-judicial action.

The history of the different countries of South America that have faced the question of accountability shows that general amnesties for members of the security forces are universally unpopular and widely regarded as illegitimate. Far from promoting "reconciliation," they are profoundly divisive. Moreover, the price of failing to fulfil the duty to investigate and prosecute human rights abuses, and letting members of the security forces who have abused human rights go free, may be a continuing culture of official violence. Accounts of serious human rights abuse under the democratic regimes which have succeeded military dictatorships in Latin America show that the record is unlikely to change without a high-level commitment to accountability: if members of the security forces know that they enjoy impunity, torture and other abuses will continue to occur.

Even when it may be possible to justify - in the interests of reconciliation or political expediency - immunity from prosecution for those who committed the least serious abuses (for example, in exchange for cooperation in the investigation of other offenses), Human Rights Watch holds that it is contrary to international law for a state to grant impunity for the most serious abuses of rights. In these cases, truth is not sufficient and justice at all levels of responsibility is demanded: obedience to orders is no defense for those who have carried out genocide, summary executions, "disappearances," torture, or prolonged arbitrary deprivation of liberty. Moreover, although the government may legitimately forgive its enemies, it has no moral standing to forgive the crimes of its own servants, which may have been committed pursuant to its own policies. Human Rights Watch maintains that an amnesty of whatever nature is not valid if promulgated by the perpetrators themselves: it is for the victims to forgive, when they have full knowledge of the facts.

The full text of the report supports these opinions. We urge you to accept its recommendations.

Sincerely,

Aryeh Neier

Executive Director, Human Rights Watch.



1 Human Rights Watch's Policy on Accountability for Past Abuses is set out in the appendix to this report.


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October 23, 1992