After graduating from Witwatersrand University School of Law in 1962, I practiced for 17 years at the Johannesburg Bar. My practice was almost exclusively in the field of commercial law. As a young barrister, I did my share of pro bono criminal defenses in the High Court, but that was the extent of my criminal trial experience, save for a long and complex commercial fraud trial that lasted for some nine months in Durban. In 1977, during that trial my application for senior status (the English Bar equivalent of Queen's Counsel) was granted.

Between 1978 and 1980, I accepted three short acting appointments on what was then called the Transvaal Supreme Court (today called the Gauteng High Court). During the first half of 1980, I was invited by the minister of justice to accept a permanent appointment on the Court. This presented me with an excruciatingly difficult decision. From my student days I had been involved in activities designed to bring to an end the evil system of apartheid. I had served as the president of the student council at the University of the Witwatersrand that had actively opposed attempts by the government to segregate what it regarded as a “white university.” I had also served on the executive committee of the National Union of South African Students (NUSAS), an organization that was also strongly anti-apartheid and an anathema to the government. As a form of retribution, for some years the apartheid government denied me a passport.

A few anti-apartheid lawyers had accepted appointments to the bench with the intention of ameliorating the harsh application of the racially oppressive laws that then applied to the black majority. One of them, John Didcott, was a role model. He was a former leader of the student council at the University of Natal and a member of the Executive Committee of NUSAS. He quickly made a name for himself as the author of well-written opinions that castigated racist laws and for issuing astute decisions that had the effect of blunting some of the harsh consequences of some oppressive laws.

It is appropriate at the outset to pay warm tribute to Whitney Harris who played a key role in establishing the initiative on a Convention for Crimes Against Humanity. Whitney was one of the leading prosecutors at Nuremberg and worked closely with U.S. Chief Prosecutor Justice Robert Jackson. It was my distinct privilege to have met Whitney in Nuremberg and hear him deliver the opening address in 1995 at a seminar to mark the fiftieth anniversary of the Nuremberg Trials against the major Nazi leaders. His voice resonated in the very courtroom where that trial was held, as the immortal words of Justice Robert Jackson took on a new and urgent meaning.

The Whitney R. Harris World Law Institute at Washington University in St. Louis functions as a center for instruction and research in international and comparative law. It is the home of the project. Those of us involved with the project rejoiced in having the support and advice of Whitney and we are sad that he passed away before the completion of the project. We console ourselves with the knowledge of how much a Convention on Crimes Against Humanity meant to him and how much satisfaction he received from it.

I believe it is important for governments and international institutions, including the World Bank, to encourage research into social and economic rights in developing countries, and I welcome this excellent work on the topic. The enforcement of these rights represents a new and controversial area of judicial intervention. Social and economic rights fall into that category of rights, often referred to as second-generation rights, that also includes cultural and developmental rights. They are distinguished from first-generation rights, which consist of political and civil rights such as equality and the freedom of speech and of assembly.

Second-generation rights were recognized in the 1948 Universal Declaration of Human Rights and given effect in the International Covenant on Economic, Social, and Cultural Rights, which became effective in 1976. However, until comparatively recently, these rights were not taken seriously and were subordinated to civil and political rights. Few states took steps to entrench such rights constitutionally or to adopt legislation or administrative provisions to make such rights enforceable.

A common objection to giving courts jurisdiction over second-generation rights is that judges are ill equipped to adjudicate on the manner in which the legislative and executive branches of government determine how the national budget should be allocated. In countries like the United States of America, there is an additional objection – traditionally only negative rights are enforceable and the courts are regarded as not having jurisdiction to adjudicate positive rights.

Transitional justice has become a feature of the past three decades. It is a consequence of the significant number of nations that have struggled to make the transition from war to peace or from oppression and discrimination to forms of democratic government. The challenge facing such societies is the manner in which they should treat past serious human rights violations. The perpetrators seek blanket amnesties and the victims seek prosecution of the former leaders.

It is tempting in that context to forget the past in favor of building a new and better future. It is the line of least resistance. It is also a recipe for future disaster. Where past human rights violations are ignored and the victims forgotten, there is a cancer in such a society that remains dormant and available for use or abuse by some or other future despotic, nationalistic leader. Examples are there for the choosing – the Balkans, Rwanda, the Middle East.

More enlightened leaders have sought a third way between national amnesia and criminal prosecutions – the establishment of a truth commission. In chapter 1 of this work there is an excellent and concise history of truth commissions and an explanation of their relationship to courts and other forms of official and nonofficial truth-seeking mechanisms.

One of the challenges facing a truth commission is the fairness of its proceedings. It is all too easy to allow it to be used as a political platform to castigate the former regime.