WHEN the question of Eugene de Kock’s possible release from prison made headlines in 2010, Business Day published many irate letters from readers who believed he should be "left to rot in hell". These letters expressed widespread public sentiment at the time. In recent weeks, many members of the public who called radio stations to air their views on De Kock condemned granting him parole in the strongest possible language. But matters of criminal justice cannot be determined by public sentiment.
In 2010, I wrote on these pages that De Kock should not be released from prison. I maintained that the state should not lose sight of the gravity of De Kock’s crimes and had a duty under international law to prosecute those who committed crimes against humanity. I was and remain troubled by the fact that the state so quickly lost its appetite to prosecute those perpetrators of political crimes who failed to receive amnesty. Having observed De Kock’s 1996 trial in the high court in Pretoria, I was sceptical about whether he showed any remorse for his actions.
Today, I agree with many that the time has come to release De Kock. What are the reasons for the shift in my thinking? First, the selectivity of criminal justice remains problematic. Second, the spirit of the transition demands his release. And third, his expressions of remorse have contributed to revealing the truth about apartheid atrocities long after the Truth and Reconciliation Commission ended its work. Significantly, Marjorie Jobson of the Khulumani Support Group recently described De Kock as one of the main "links to the truth" for families that had lost relatives involved in anti-apartheid activities.
Many former apartheid perpetrators made the cold calculation that if they failed to co-operate with the commission and did not apply for amnesty, the chances that they would be prosecuted subsequent to the commission process would be very slim. Most of them calculated correctly.
For the category of perpetrators who successfully applied for amnesty, the system also worked. Because of the lack of political will to prosecute those who did not receive amnesty, the system was also largely beneficial for the third category of perpetrators who unsuccessfully applied for amnesty. De Kock falls into a fourth and unusual category: that of perpetrators who received partial amnesty. He spilled the beans yet did not receive any "reward" for doing so.
In assessing the dilemma of whether De Kock should receive parole, one cannot overlook the moral problems raised by selective prosecution. Of all the senior members of the security police involved in the Vlakplaas death squad, De Kock is the only one serving a prison sentence. The problem with criminal prosecutions is the risk of politicised selectivity.
The problem of selectivity has been raised with regard to international criminal justice as a whole. It seems that "strategically weak" states that have no friends on the United Nations Security Council are much more likely to be targeted for international prosecutions.
Whereas the commission did not consider remorse a requirement for successful amnesty applicants, its presence is a factor in the decision to grant parole. The sincerity of remorse is, of course, almost impossible to establish. I believe that remorse can most clearly be seen not just from words but from actions. De Kock has not only expressed sorrow for his actions, he has written to the relatives of his victims, asking for forgiveness. His active expressions of remorse stand in stark contrast to the attitude of the late Dirk Coetzee, who refused to apologise for any of his actions. It also stands in chilling contrast to FW de Klerk’s broad smile when he received the Nobel Peace Prize.
From the anger in the voices of those who called in to radio stations, the pain of apartheid is still fresh. Whether it is fair to project all the anger towards one man should be a matter of national debate. I maintain that a system like apartheid depends on the participation of millions of active decision makers, perpetrators, collaborators and bystanders.
The jury is still out on whether amnesty was the best measure of dealing with apartheid atrocities. It remains inescapable that the morality of forgiveness instead of vengeance forms an integral part of our constitutional democracy. De Kock does not deserve our sympathy but he deserves the mercy inherent in the morality of our transition.
Freeing De Kock after 20 years in prison will be a fitting tribute to the legacy of Nelson Mandela.
• Swart is professor of international law at the University of Johannesburg.