When the state fails : the role of the Khulumani support group in obtaining reparations for victims of apartheid

• Author: Mia Swart
• DOI: 10.10520/EJC-c6c2082f3
• Published date: 01 January 2016
• Date: 01 January 2016
• Record Number: sapr1_v31_n2_a2
• Pages: 1-29

1

https://doi.org/10.25159/2522-6800/2929

ISSN 2522-6800 (Online) ISSN 2219-6412 (Print)

© Unisa Press 2017

Southern African Public Law

https://upjournals.co.za/index.php/SAPL/index

Volume 31 | Number 2 | 2016 | #2929 | 29 pages

ARTICLE

WHEN THE STATE FAILS: THE ROLE OF THE

KHULUMANI SUPPORT GROUP IN OBTAINING

REPARATIONS FOR VICTIMS OF APARTHEID

Mia Swart

Research Director, Democracy and Governance Unit, HSRC

Visiting Professor, University of the Witwatersrand

Email: MSwart@uj.ac.za

ABSTRACT

‘Politics begins when one decides not to represent victims … but to be

faithful to those events during which victims politically assert themselves.’

Alain Badiou (1985). Peut on penser la politique?

It is argued that one should not look at the state as the sole actor capable of delivering

justice in transitional and post-transitional contexts. Victim organisations can be equally

well equipped as and, in certain contexts, better equipped than the state to represent the

interests of victims and to assist in formulating reparation policies.

Keywords: reparations; victims; transitional justice; Khulumani; Truth and Reconciliation

Committee; civil society; victim organsiations; Alien Tort Claims Act

INTRODUCTION

In the aftermath of serious human rights violations victim organisations often emerge

to help victims raise their voice about gross injustices and mobilise collectively for

recognition and reparation.1 Historical examples, most prominently and forcefully the

Holocaust victim organisations,2 show the important role that such organisations can

1 See, for example, Heidy Rombouts, Victim Organisations and the Politics of Reparation: A Case Study

(Intersentia 2004).

2 See Michael Bazyler and Roger Alford, Holocaust Restitution: Perspectives on the Litigation and its

Legacy (NYU Press 2007). The most prominent of these groups is the Conference on Jewish Material

2

Swart When the State Fails

play in initiating reparation claims, mobilising victims and applying pressure to obtain

such reparations. Therefore, victim organisations, like other non-state actors, can be

both catalysts of human rights discourse in domestic politics and instigators of domestic

and international policy change.3

In what Ruti Teitel describes as the ‘global phase’ of transitional justice,4

transnational non-governmental organisations (NGOs) and global civil society have

become increasingly involved. This phenomenom has generated ‘a shift from a focus

on state-centric obligations to a focus upon the far broader array of interests in non-state

actors associated with globalisation’.5 For this reason the work of global civil society

has frequently been credited with putting victims and human rights on the agenda. The

rise of victim organisations and other civil society actors as mobilisers and pressure

groups for the payment of reparations for serious human rights violations indicate

something important about the role and shortcomings of states in transitional contexts.

Victim organisations often substitute the state by fullling similar roles to it. Typically,

they both represent the interests of victims and support them; they promote victims’

rights by advocating changes in the policies and laws that affect them.

This article is particularly concerned with the role of victim organisations in the

aftermath of the work of the South African Truth and Reconciliation Commission

(TRC). It focuses on the Khulumani Support Group (KSG), because it is the best

example of a victim organisation that has mobilised victims and applied pressure on the

South African government to full its moral and international law obligations6 to pay

reparations to the victims of apartheid.

Claims Against Germany that was established in 1951.

3 See Sonia Cardenas, Human Rights in Latin America: A Politics of Terror and Hope (University of

Pennsylvania Press 2011); James Meernik, ‘The Impact of Human Rights Organizations on Naming

and Shaming Campaigns’ (2012) 56(2) Journal of Conict Resolution 233.

4 Ruti Teitel, Globalising Transitional Justice (OUP 2014) 4–5. The author denes the ‘global phase’ of

transitional justice by: ‘… three signicant dimensions: rst, the move from exceptional transitional

responses to a “steady state” justice, associated with post-conict related phenomena that emerge from

a fairly pervasive state of conict, including ethnic and civil wars; second, a shift from a focus on state-

centric obligations to a focus upon the far broader array of interests in non-state actors associated with

globalization; and, third and last, we see an expansion of the law’s role in advancing democratization

and state-building toward the more complex role of transitional justice in the broader purposes of

promoting and maintaining peace and human security.’

5 Teitel (n 4).

6 Velasquez-Rodriguez v Honduras 1988 4 Inter-Am Ct HR (Ser C) para 172; see also, for example,

International Covenant on Civil and Political Rights (OHCHR) 999 UNTS 171 art 2 entered into force

23 March 1996; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment 1465 UNTS 85 art 14 entered into force 26 June 1987; International Convention on the

Elimination of All Forms of Racial Discrimination 660 UNTS 195 art 6 entered into force 4 January

1969; Convention on the Rights of the Child (CRC) 1577 UNTS 3 art 39 entered into force 2 September

1990.