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Chapter One

New Challenges: Judging Injustice

After serving twenty-seven years of a life term for high treason, Nelson Mandela was released from prison on Sunday, 11 February 1990. A few weeks earlier, the South African Police had arrested Clayton Sizwe Sithole, a soldier of Umkhonto we Sizwe (the armed wing of the African National Congress) who was also the boyfriend of Zindzi Mandela (the daughter of Nelson and Winnie Mandela) and the father of her three-month-old son. On Tuesday, 30 January 1990, four days after his arrest, Sithole was found hanged in a prison cell in the Johannesburg Central Police Station.

My role as an investigator began the following day, when I was appointed by President Frederick W. de Klerk to conduct a judicial inquiry into the cause of Sithole's death. This appointment was highly unusual, as inquests into unnatural deaths were invariably held by a magistrate, under legislation that regulated autopsies. Also unusual was the appointment of a person who had had little previous experience of criminal procedures or investigations. My expertise lay in the commercial field. The decision to appoint a judge of what was then the highest court in the land to inquire into this matter reflected the political sensitivity of the incident.

By 1990 almost one hundred people had died in police detention. In every case the police put out exculpatory explanations. Some of the detainees had "slipped on a piece of soap," thereby sustaining fatal head injuries. Others had suffered "acute depression" after having given information concerning their friends and had "committed suicide" by jumping out of upper-floor windows of a police building. Never was there an admission of police brutality or torture as the cause. The most publicized of such deaths was undoubtedly that of Steve Biko, the leader of the Black Consciousness Movement and a popular figure in South Africa's black community. Only recently, in their amnesty applications to South Africa's Truth and Reconciliation Commission, have five police officers admitted that they fatally assaulted Biko while he was in their custody. Regardless of the explanations offered, however, there was a widespread assumption that the police were responsible for deaths in detention, and this made the alleged suicide of Sithole all the more sensitive.

As the evidence unfolded during five days of oral testimony, it became clear beyond any question that Sithole had in fact taken his own life; indeed, it was accepted by the legal team acting for his family. I found that one of the probable reasons for the suicide was remorse at having informed the police of alleged criminal conduct by both Winnie and Zindzi Mandela. Because Winnie Mandela was not represented at the inquiry, I considered it unfair for the substance of those allegations to be made public. With the agreement of counsel for the Sithole family and the South African Police, the allegations were kept confidential.

Shortly after the Sithole inquiry, I became involved in the investigation of the causes of violence in South Africa during its transition from apartheid to democracy. As a direct consequence I was appointed the first Chief Prosecutor of the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda, a formal title for the dual role of war crimes investigator and prosecutor.

When I travel abroad, the question I am most frequently asked is "Why you?" The answer requires me to go back to my student days at the University of the Witwatersrand. There I had the opportunity to meet blacks among my fellow students and developed a deep sense of the injustice they were forced to endure in their daily lives. When I returned to a comfortable home in a white suburb, those students went to the squalor of the black townships. Because many of their homes had no electricity, they had no option but to study at night by the poor illumination of paraffin lamps or, in some cases, candles.

Within months of my first year's study, my sense of shame and injustice caused me to become active in student organizations. They were then fighting a battle against the proposed introduction by the government of apartheid structures within the few South African universities that admitted students of color. I was elected to the Students' Representative Council and soon thereafter to the executive committee of the National Union of South African Students (NUSAS).

In 1957 I represented NUSAS at meetings of World University Service (WUS) in West Africa. My codelegate was Jeffrey Jowell, later to become the dean of the law school at University College, London, and the coauthor, with Lord Harry Woolf, of the leading English textbook on administrative law. It was the first time I had traveled abroad, and what a delight and privilege it was to meet students and faculty from scores of countries around the world. It was also my first experience of the cohesion and commitment of the international student antiapartheid movement. That I was welcomed, and literally embraced, by students from other African countries was an emotional experience. It was also a strong reminder of the life all South Africans could then have enjoyed in a free, democratic, and nonracist society. But, alas, that was still thirty-seven years in the making.

My student leadership days also brought me into unsolicited contact with the security police. They were particularly interested in student activists, and many days and nights I was followed by unfriendly plainclothes police in Volkswagens. They made their presence obvious in an attempt to frighten and harass people whose activities they disapproved of. Of course, it did not have that effect--indeed, to young, otherwise carefree students, their activities lent added excitement to our whole endeavor. My parents, I recall, did not share this laissez-faire attitude--but, to their credit, they did not pressure me to cease my activities.

NUSAS and the Students' Representative Council also brought me into contact with some of the leaders of the antiapartheid movement in South Africa at that time. We used to have monthly meetings at the home of Bishop Ambrose Reeves, the Anglican bishop of Johannes. burg. There, we were joined by representatives of thirteen other organizations, which included the African National Congress (ANC), the Congress of Democrats, and the South African Indian Congress. I shared with them their dreams of a South Africa in which all people would live in harmony as equal citizens of the country of their birth.

My student activism lasted for the first four years of my six-year law degree. In the last two years I worked as a candidate attorney for the large commercial firm of Edward Nathan and Friedland in Johannesburg. In the late afternoons I would attend law lectures at Witwatersrand University Law School. In December 1962, within weeks of graduating, I married Noleen Behrman, whom I had met on the steps of the university when she was playing hooky from a psychology experiment, having become frustrated because the rats were running the wrong way. All but one, as it turned out!

* * *

Since the nineteenth century, South Africa has had a dual Bar based on the English model, with barristers and solicitors. From my earliest school days it had been my ambition to become a barrister, and I began my practice at the Johannesburg Bar in April 1963. Although the combination of my family commitments and my law practice kept me out of active politics, I became an interested observer, increasingly frustrated and full of despair at the enforcement of laws designed to impose apartheid in greater and greater measure and to snuff out opposition to those policies.

I built a successful commercial practice and in 1977 was appointed as a senior counsel (the equivalent of Queen's Counsel in England). According to South African tradition, superior court judges were appointed from the ranks of senior counsel. To make good its boast of having an independent judiciary, successive apartheid governments elevated some barristers to the High Court Bench notwithstanding any active opposition to government policies on their part.

In 1978 I was offered an acting appointment as a judge on the Transvaal Supreme Court. The moral problems of joining the South African judiciary were manifest. Its members were obliged, by their oaths of office, to enforce the laws of the land. This was a great concern to me. I decided, however, that I could play a more active role in efforts to ameliorate those laws by accepting the appointment rather than by continuing to pursue a lucrative commercial career. Leaders of the Johannesburg Bar who were themselves antiapartheid activists encouraged me to accept the appointment. The drop in income was appreciable, but, as she has done throughout my career, Noleen supported my decision. Little did we anticipate the exciting years that lay ahead!

I accepted a permanent appointment to the Transvaal Supreme Court in August 1980. An early opinion I delivered in November 1982 brought national and international attention. It related to the laws through which residential segregation had been enforced since 1950. The statute, known as the Group Areas Act, had been amended and updated in 1966. The legislation empowered the government to decree that certain areas of South Africa were to be reserved for the exclusive use of people of one or another color. It was a criminal offense for a person of the "wrong" color to reside or own property in such a group area. The most desirable areas were set aside for whites, and the least desirable for blacks. Some areas were set aside for Asians, and some areas for "coloreds" (people of mixed descent). The opinion was delivered in an appeal of the conviction of a Mrs. Govender, an elderly Asian woman, on a charge of unlawfully residing with her children and grandchildren in a rented house in a part of Johannesburg reserved for whites.

When Mrs. Govender appeared before a magistrate, she pleaded guilty and was sentenced to a fine of less than ten dollars or to fifteen days' imprisonment, all of which was suspended for three years on the condition that she not be convicted of a similar offense during that time. However, the sting was an order that she be ejected from the home. What was unusual in this case was that Mrs. Govender's counsel had persuaded the magistrate to suspend the ejectment order for nine months. He did so on the strength of evidence which established that there were no alternative accommodations for Asians in the Johannesburg area, that Mrs. Govender had been on a waiting list for some seven years, and that she might have to wait another ten before such accommodations would become available. Mrs. Govender appealed to the Transvaal High Court only on the grounds that the magistrate should have suspended the order indefinitely or until she found alternative accommodations.

A two-judge panel, comprising Judge Louis le Grange and me, heard the appeal. In a discussion before hearing argument, we had come to the conclusion that we were not able to assist Mrs. Govender. During the oral argument, however, a new approach occurred to me. At my request, we adjourned early for lunch so that I could discuss the new point with my colleague. Over lunch and a glass of wine, I pointed out that the Group Areas Act of 1966 provided that a court convicting a person for living in a "wrong" group area "may ... make an order for the ejectment" of such person. In contrast, the original 1950 statute provided that the court "shall" make such an order. We agreed that since the promulgation of the 1966 amendment, courts had failed to pay attention to the fact that the power to make an ejectment order had become discretionary. When the hearing resumed, I requested counsel to consider the effect of the change in the wording of the provision, resulting in a two-week adjournment. In the subsequent judgment we set aside the ejectment order. In the course of my opinion, I said that

The power to make such an ejectment order is a wide one. It is one which may, and in most cases will, seriously affect the lives of the person or persons concerned. It may, and frequently will, interfere with the normal contractual relationship which exists between landlord and tenant. Such an order should not therefore be made without the fullest enquiry....

The prosecutor, if requested by an interested party to seek such an order, would be obliged to place material before the court to justify the exercise of the court's discretion to grant the ejectment order. I cannot imagine any circumstances which would justify a court making such an order mero motu [of its own accord]. Many considerations may be relevant to the exercise of the court's discretion.

One of a number of considerations to which I referred was "the personal hardship which such an order may cause and the availability of alternative accommodation."

Little could I have imagined that this opinion would bring to an immediate stop all prosecutions under the Group Areas Act. It had become politically embarrassing for the government to make the issue of an ejectment order peremptory, and prosecutors were unable to establish the availability of alternative accommodations. In consequence, substantial areas of the larger cities of South Africa became "mixed" in the years that followed the Govender decision.

A few years later, as an item on the order paper (a list of questions that members of Parliament putt to government ministers), Gaye Derby-Lewis, a right-wing member of Parliament, asked the president, then P. W. Botha, why the government was allowing "blacks" to reside in "white areas." Botha, somewhat disingenuously, replied that the government had no alternative because of "a judgment of Judge Goldstone." She asked whether the country was being run by the government or Judge Goldstone! This incident had a sequel in 1993, to which I will return in Chapter 2.

In 1986, another case received publicity, this one involving seizure by the security police of calendars printed on behalf of the Release Mandela Campaign, an association dedicated to freeing Nelson Mandela. The calendars contained the preamble to the Freedom Charter, an ANC charter passed at the Congress of the People in 1956, four years before that organization was declared unlawful under the security laws that were introduced in the wake of the deaths of sixty-nine protesters in Sharpeville. The calendar highlighted the birthdates of Nelson Mandela and Walter Sisulu and recorded the dates of Steve Biko's and Nell Aggett's deaths during police detention, as well as the dates of the Sharpeville Massacre and Uitenhage Massacre. The police justified the seizure of the calendars, inter alia, on the grounds that their contents would further the activities of a banned organization, namely, the African National Congress. I set aside the seizure of the calendars and ordered that they be returned to the Release Mandela Campaign. I did so on the strength of the evidence of Dr. Tom Lodge, a senior lecturer in political studies from the University of the Witwatersrand. He testified that the terms of the Freedom Charter mirrored the principles to be found in the Universal Declaration of Human Rights and other human rights conventions and were accepted as the norm in the United States of America and most western European nations. It followed, too, a recent decision of two colleagues in the Transvaal Supreme Court who concluded that demands for the release of Nelson Mandela had become so widespread that they could no longer be identified solely with the ANC.

For more than three years, from 1985 to 1989, South Africa was governed by emergency laws proclaimed by President Botha. They allowed for the detention of a person without trial if the police considered that detention "necessary for the maintenance of public order or the safety of the public or that person himself, or for the termination of the state of emergency." The detention period of up to fourteen days could be extended indefinitely by the minister of law and order. At one point in 1986, some ten thousand South Africans were being held in prisons and police cells under these emergency regulations.

From the time of my appointment to the Transvaal Supreme Court, I had exercised the power given to all South African judges to visit prisons. Unfortunately, not many of my colleagues shared this interest or regarded such visits as a duty. Judicial visits were allowed only to individuals held in the regular prisons, not to those detained in police cells. And, of course, it was in police cells that third-degree methods and torture took place.

Toward the end of 1985, Botha requested in Parliament that judges be permitted to visit people being held in prisons and police cells under the emergency regulations. Although he gave no reasons for the request, he was subtly but unquestionably sending a message to prison and police authorities not to assault or torture detainees. It was also a way of reassuring South Africans and the international community that detainees, many of whom were children, would not be physically ill treated.

Shortly thereafter, I was approached by Wes Boshoff, the judge-president of the Transvaal Supreme Court, who asked if I would be willing to take off six months from my court duties. During that time he wanted me to visit detainees held in prisons and police cells in the Transvaal Province. He was aware of my interest in prisoners and prison conditions and my long association with the National Institute for Crime Prevention and Rehabilitation of Offenders (NICRO) as chairperson and later president.

The approach from the judge-president immediately created a serious dilemma for me. I did not believe the judiciary should become involved in a system that detained people without trial--a system abhorrent to anyone who respected fundamental human rights. At the same time, I recognized that the detainees would probably benefit from the protection a visiting judge could give to them.

I decided to seek advice from a longtime friend, George Bizos, a member of the Johannesburg Bar and for many years the adviser of both Nelson and Winnie Mandela. Bizos had been involved in a number of autopsies related to deaths in detention. He immediately understood my conflict and advised me to visit some detainees and find out what they wished me to do. Acting on his advice, I went to the police station in the city center and requested access to the detainees. Despite the police officers' surprise at my request, I was given a doctor's consulting room as my office. The first detainee I spoke to was Zwelakhe Sisulu, the son of Walter Sisulu and, like his father, a leading member of the ANC. At the time he was the editor of New Nation, the weekly newspaper he produced on behalf of the South African Catholic Bishops' Conference. Mr. Sisulu's complaints were serious: he had been kept for some weeks in isolation; the lights in his cell were kept on twenty-four hours a day; and a closed-circuit television camera recorded his movements day and night. He had been given no reading material--not even the Bible, which the regulations mandated for every detainee.

After I had listened to Sisulu's grievances, I told him that I wanted some advice from him. I remember how he put his head back and gave a deep laugh. He said it was rich having a Supreme Court judge ask a detainee for advice. I assured him that I was serious and told him of my dilemma. He immediately grasped the issue and without hesitation said, "I am so pleased to see you. Please come back soon. That will be the attitude also of the other detainees." That ended my equivocation, and later that afternoon I informed the judge-president that I would do as he had requested. I spent the next six months visiting hundreds of detainees, After that period, my assignment continued on a part-time basis, and I visited detainees in the Transvaal Province for another eighteen months, until the emergency laws came to an end.

The original emergency laws were draconian. Detainees were not allowed to consult with lawyers, and it was an offense for any person to disclose not only the whereabouts of a detainee but also the fact that the person in question had been detained. Detainees were not allowed to receive visits from family members, a particularly harsh restriction, as many detainees were children, some as young as eleven. Within a few weeks I was able to convince the minister of law and order to allow detainees to receive regular visits from their families. Applications for such visits necessitated a visit to the local police station, the completion of a form, and the issue of a written permit. I also introduced a system whereby detainees were able to receive magazines--on the condition that they be approved by the head of the prison or the police cells. Over the following years I collected many thousands of magazines for distribution, For reasons never explained to me, however, the minister was set against detainees' having any books other than the Bible.

During those two and a half years, I visited more than three thousand people being detained without trial. It was soul-destroying work. None of them had committed any criminal offense, and some had been incarcerated for more than two years. Most were politically active in their own communities and were involved in the struggle against the apartheid government. It is difficult to imagine the mental agony of being kept in prison indefinitely. Many thought they had been forgotten and would never be set free. Under those circumstances, it is not difficult to appreciate the importance of my visits.

Much of my work consisted in convincing unsympathetic police officers to adopt a more humane attitude toward the detainees. As far as many of the police officers were concerned, those detained were enemies of the state and hardly deserving of sympathy. At one prison near Johannesburg, where many hundreds of detainees were being kept, I discovered that none had received a visit from a family member. Some of the detainees informed me that the problem lay in the requirement that a visiting permit had to be obtained from the local police station. Family members were scared to be seen there for fear of being branded police informers. I was able to convince a sympathetic local police chief that a different system had to be introduced. He agreed that the solution was to have NICRO social workers meet the family members at a local church, where the required police forms were completed. The NICRO workers then delivered them to the police station and later returned with the visiting permits. Through this system, many thousands of prison visits were made possible.

By 1989, the third year of the state of emergency, the mental state of many of the detainees had deteriorated. What had begun as frustration often developed into depression. At the end of a several-day visit to the Johannesburg Prison, I assembled all the detainees in the dining hall and asked if they wished to raise any further matters with me. I recall a young ANC activist, Seth Mazibuko, raising his hand. He reminded me that the detainees had all refused to wear prison clothes and were allowed only one set of their own clothes at a time. "Judge," he said, "we have our own clothes to wear but we are tired of them. Surely there are some people outside who would like us to have new, clean track suits and running shoes." I found this a good idea and asked Mazibuko if he would send me the names of the detainees, along with their shoe and clothing sizes. Later the same day, the prison authorities delivered the list to me at court. By chance, John Pegge, the director of NICRO, was visiting my chambers. I told him that it would be appropriate for NICRO to provide the requested items. He agreed, though we were surprised by the high estimate he received from a large store in Johannesburg. NICRO certainly did not have such funds. I suggested that he ask Ismael Ayob, who for years had been the attorney of the Mandela family, to obtain a lower quotation from merchants he might represent. He did. Pegge, on his own initiative, stopped by the office of the British consul general and asked for financial assistance. The consul general gave Pegge a check for part of the amount, and Ayob made up the difference from his own pocket. The clothes were delivered to the detainees on the following day.

Of the thousands of magazines I collected and stored in our garage, many came from local and foreign journalists; I recall that Helen Suzman, an opposition member of the South African Parliament, gave me her collection of the New Yorker . These were particularly enjoyed by many of the detainees, especially by Zwelakhe Sisulu. I seldom had problems in obtaining the consent I needed to distribute the magazines. On one occasion, however, during 1989, I delivered a large number of magazines to a police station in Johannesburg and asked the police chief to help me carry them from my car. On top of the pile were some Time magazines. "I cannot allow political detainees to read Time, " he stated. "Why not?" I inquired, somewhat puzzled. "You know, Judge," he said, with a note of conviction in his voice, "this magazine quotes people like Senator Kennedy." I could hardly deny his observation, so there was little I could say in reply. And there was no way I could have convinced him that the utterances of Ted Kennedy would not make young South African political activists more dangerous. A couple of years later I was invited to dinner by Kennedy, who enjoyed the story.

Since the first democratic elections in 1994, I have come across scores of former detainees who are eager to recount our first meeting. Some now occupy high positions in government and in the business sector.

The activities I have described may explain why I was approached to conduct the Sithole inquest and the much more complex investigations thereafter. The government was aware that I would not make findings against it without good cause, and the majority of South Africans had confidence that I would not hesitate to make findings against the government if the evidence justified it.

The first official meeting between the African National Congress and the de Klerk government to consider a negotiated transition for South Africa was to have been held on 31 March 1990. It was postponed, however, because of what came to be called the Sebokeng Massacre. Five days earlier, a crowd of about fifty thousand ANC supporters had been marching in a township some twenty-five miles from Johannesburg. The authorities were determined to stop the march before it reached an exclusively white residential area. A line of South African Police began by blocking the crowd while it was still in the black township; the police then opened fire at the crowd using live ammunition, killing eleven and injuring more than four hundred. Mandela's response was immediate. He warned de Klerk that the government could not talk about negotiations, on the one hand, and murder "our people," on the other.

De Klerk appointed me to chair a judicial inquiry to investigate the circumstances of the shooting. By that time I had been elevated to the Supreme Court of Appeal, then known as the Appellate Division of the Supreme Court--the highest court of appeal. I accepted and decided that the hearings should be held publicly in a venue as close as possible to the scene of the shooting so as to enable the victims and their families to hear the evidence for themselves. The inquiry was facilitated by unusual video footage of the incident, which had been delivered anonymously to my chambers shortly before the public hearings were to commence. A television crew had obviously made the video, and from the friendly reaction of the crowd to the cameraman, I had little doubt that it was an American team. The tape captured the police lineup but, unfortunately, not the moment the shooting began. At that point the focus was on the demonstrators.

In investigating the incident and presenting the evidence before the commission, I was fortunate in having a young, hard-working, and highly intelligent deputy attorney general, Johan du Toit (known as "J.J."). He conceived the idea of having the video image of the police line blown up into a large photograph. He then requested that police identify each person in the line. On a given morning, all those in the photograph were told to present themselves at the scene of the shooting. J. J. then walked along the line of police officers and asked each individual to describe not only what he had done at the time of the shooting but also what those on either side of him had done. As a result, he was able to ascertain who had fired the first shot--which proved to be from a gas canister fired in panic. And that shot had caused a chain reaction. In fact no order to shoot had been given by the commanding officer. This astute investigation was especially significant in the ensuing detailed inquiry.

One individual in the photograph of the police lineup was not present for questioning. Only after some pressuring did the police authorities admit that the man, who could clearly be seen holding a revolver in his hand, was a passerby who had heard about the trouble on his car radio and had decided to help the police. This was an indication of the laxity of discipline and control even in a serious police activity of this kind.

Over the next few weeks, evidence from witnesses was submitted and was followed by detailed submissions from counsel representing interested parties. George Bizos, who had given me such wise advice with regard to detainee visits, appeared on behalf of the victims who had been injured by the bullets and of the families of those killed. My finding was that the police had acted unlawfully when they opened fire on the demonstrators and that those responsible should be prosecuted for murder and culpable homicide. Prosecutions followed, but the criminal trial came to an end when the policemen applied to the Truth and Reconciliation Commission for amnesty. The government, however, paid substantial amounts in civil claims to the victims and survivors.

The report into the Sebokeng shooting led to my first experience with hate mail and threatening telephone calls at odd hours of the day and night. I was grateful that by this time our two daughters were no longer living at home. Our elder daughter, Glenda, was married and our younger daughter, Nicole, was living in Israel. Noleen never complained, and neither of us allowed threats to our lives or security to change the way we lived, even though I now looked at everything going on around me a bit more suspiciously. In subsequent years the security risks became more serious.

The Sebokeng Massacre was the first of many serious incidents of violence and intimidation that eroded the euphoria surrounding the negotiation process that had gripped South Africa after Mandela's release. It was replaced by an atmosphere of realism. Soon, however, the whole peace process was jeopardized by the ongoing political violence that was claiming so many lives. On 14 September 1991, the major parties and personalities involved in the peace process attended a meeting at a Johannesburg hotel and set up a National Peace Accord. It was attended by about fifty political, church, business, and civic groups from all over the country. According to the terms of the Peace Accord, peace committees were established in every city, town, and village in South Africa.

Some months before the National Peace Accord was negotiated, the de Klerk government had piloted a statute through Parliament which made provision for the appointment, by the president, of a Standing Commission of Inquiry Regarding the Prevention of Public Violence and Intimidation. Governments had not infrequently appointed judges to head inquiries into specific incidents--especially politically sensitive ones. But a standing judicial commission of inquiry was something new. What was also unusual was that in addition to the usual power to summon witnesses before the commission, the statute conferred upon the chairperson the power to order officials of the commission to search and seize documents or any object at any premises in the country. In terms of the statute, the chairperson was to be assisted by four other members. The African National Congress and its allies, however, were not prepared to be associated with a commission of inquiry appointed by de Klerk. A compromise was reached whereby de Klerk agreed that he would make appointments of the chairperson and members of the commission only with the unanimous support of all of the parties to the National Peace Accord.

Toward the end of October 1991, I was informed by Kobie Coetsee, the minister of justice, that the parties to the National Peace Accord had unanimously agreed that I should be invited to head the commission. I entertained grave doubts and misgivings concerning such an appointment. My decision was not made easier when Coetsee warned me that, given the political ramifications of the appointment, I might well have to leave the Bench. To the extent that the government could commit itself for the future, it would seek to ensure that my career would not be compromised, and as a possible solution he suggested a diplomatic career. It was also obvious that accepting this appointment would have substantial impact on Noleen and me, though it was simply not possible to anticipate what that effect would be. In less than twenty-four hours I accepted what was clearly a great challenge and responsibility. For the next three years, the commission, which came to be known as the Goldstone Commission, conducted over forty major investigations. Some of them produced the first hard evidence of the involvement of the security forces in what came to be called "third force" activities, which were specifically intended to abort the peace process in South Africa.

In 1992 the political negotiations in South Africa became deadlocked, and the secretary-general of the United Nations, Boutros Boutros-Ghali, sent Cyrus Vance to South Africa as his representative. Vance, the former secretary of state in the Carter administration, set up an office in the Carlton Hotel in Johannesburg. I was requested to meet with him on a Monday morning to brief him on the work of my commission. On the day before the meeting I had read in a newspaper that Vance had canceled his attendance at a Sunday morning church service in Boipatong, a black township near Johannesburg. A few weeks before, a particularly callous and murderous group of people had rampaged through Boipatong and indiscriminately murdered and injured scores of innocent men, women, and children--an incident that caused the ANC to walk out of the negotiation process. Vance had changed his mind based on the opinion of the government that it would be unsafe for him to visit the township. I had no doubt that he had been given incorrect advice.

After discussion of commission business, Vance asked for my opinion on his decision not to attend the church service in Boipatong. I told him frankly that I thought he had acted on unfortunate advice. When he wondered what might be done to rectify the misunderstanding, I told him he should make a point of being seen in black townships and not give the impression that his visit to South Africa consisted only of meetings in a city hotel. He concurred and asked if I would arrange such visits and also accompany him. I agreed to do so on the condition that the visits be informal and private.

I immediately contacted the leader of the ANC in the area, Tokyo Sexwale, who later became the first democratically elected premier of Gauteng Province. At my request he accompanied Cy Vance and me to Boipatong. I also called Themba Khoza, the regional leader of Chief Buthelezi's Inkatha Freedom Party, who agreed that after we had completed our visit to Boipatong, he would accompany us to an Inkatha-supporting squatter camp, Crossroads, which was not far from Boipatong. It was important that Vance not be seen as favoring the ANC.

Just prior to leaving the hotel for Boipatong, Vance's United Nations assistant asked me whether I had informed the government of our proposed visit. Nothing had been further from my thoughts, I answered; and had I done so, we would undoubtedly have been accompanied by a large contingent of armed police in armored vehicles. I would not feel comfortable visiting a black township in that way and suggested that Vance felt similarly. Vance immediately intervened and said, rather sharply, that he had asked me to arrange the visit, and he was going with me.

The visit to Boipatong and Crossroads was remarkable for Vance--or so he has told me on more than one occasion since then. Within minutes of our arrival, word spread that we were there. Thousands of people converged on us, and at both stops the friendship and appreciation of the people was palpable. This warm reception came as no surprise, as I had experienced that friendship on many prior visits to black townships in various parts of South Africa. My abiding memory of that day was of the courage of Vance, who did not hesitate to act on my advice and in defiance of that given to him by the most senior members of the government.

Following closely upon the Vance visit, a report he submitted to Secretary-General Boutros-Ghali and to the Security Council commended the work of my commission. His comments were reflected in Resolution 772 of the council, dated 17 August 1992. Soon after, I received an unusual invitation to meet informally with the Security Council in New York in order to brief its members on the state of violence then plaguing South Africa. Little could I have anticipated that the next time I briefed the Security Council, it would be as an official of the United Nations.

In April 1994 South Africa held its first democratic elections. The ANC received a convincing majority, and in the following month Nelson Mandela was inaugurated as president. The ceremony, held at the Union Buildings in Pretoria, was attended by tens of thousands of South Africans in the presence of heads of state and royalty from well over one hundred countries. I would certainly count it as one of the most exciting days of my life. With the newly elected government in power, the work of the Goldstone Commission effectively came to an end. Formally, the commission continued until the end of its three-year term, which expired at the end of October 1994.

(Continues...)

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For Humanity; Reflections of a War Crimes Investigator

0300082053

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