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TRC Final Report

Page Number (Original) 94

Paragraph Numbers 1 to 9

Volume 1

Chapter 4

Part Appendix

Subsection 1

■ APPENDIX: A CRIME AGAINST HUMANITY29

1 It has been stated that the Commission - as part of the international human rightscommunity - affirms its judgement that apartheid, as a system of enforced racialdiscrimination and separation, was a crime against humanity. The recognition ofapartheid as a crime against humanity remains a fundamental starting point forreconciliation in South Africa. At the same time, the Commission acknowledgesthat there are those who sincerely believed differently and those, too, who wereblinded by their fear of a Communist ‘total onslaught’.

2 This sharing of the international community’s basic moral and legal position onapartheid should not be understood as a call for international criminalprosecution of those who formulated and implemented apartheid policies.Indeed, such a course would militate against the very principles on which thisCommission was established.30

3 It is important to note that the definition of what constitutes a crime againsthumanity has evolved considerably since it was first applied after World War IIduring the Nuremberg trials. There is still some debate about certain technicalaspects of this definition. However, there is almost total unanimity within theinternational community that apartheid as a form of systematic racialdiscrimination constituted a crime against humanity. Given the confusion inpublic debates in South Africa surrounding the definition of ‘crimes againsthumanity’, it is important to state that a finding of a crime against humanity doesnot necessarily or automatically involve a finding of genocide. The latter involvesconduct “with intent to destroy, in whole or in part, an ethnic or racial group” asrequired by Article 1 of the Genocide Convention of 1948.31

4 As indicated earlier, the definition of crimes against humanity can be applied at two levels. The first level of application, namely to apartheid as a system, flows from the Commission’s obligation to enquire into the causes, nature and extent of gross violations of human rights, including the antecedents and context of such violations (section 3(a)). The Commission has concluded that the nature of the conflicts in general and the causes of the violations which occurred in the course of these conflicts cannot be understood without examining the system of apartheid within which they took place.

5 The Commission was also required, at a second level of application, to enquire which of the specific acts constituting gross violations of human rights “were part of a systematic pattern of abuse” (section 4(a)).

29 The information contained in this appendix has been enhanced through comments by John Dugard, Professor of International Law, University of the Witwatersrand. See also Memorandum of law in support of concluding that apartheid is a crime against humanity, submission to the Truth and Reconciliation Commission by Lowenstein International Human Rights Law Clinic of Yale Law School, Lawyers Committee for Human Rights and Catherine Admay, Abdullahi An-Na’im, Philip Alston, M. Cherif Bassiouni, Thomas Buergenthal, William S. Dodge, John Dugard, RichardFalk, Gregory H. Fox, Thomas M. Franch, Claudio Grossman, David J. Harris, Cynthia Crawford Lichenstein, Elliot Milstein, Steven R. Ratner, Anne-Marie Slaughter, Ronald C. Slye, Henry Steiner, Ralph G. Steinhardt, Johan D. van der Vyver and Richard J. Wilson. 30 See chapter on Concepts and Principles. There was no call for trials by the international community during or after the peaceful transition from apartheid to democracy between 1990 and 1994. It was recognised that the National Party had become an active participant in this transition and that the South African situation was no longer a threat or a potential threat to international peace. At former State President De Klerk’s second appearance before the Commission in May 1997, the Commission placed on record its recognition of the vital role Mr De Klerk had played in the dismantling of the apartheid system. See Dugard 1997:275-6. ‘Retrospective Justice and the South African Model’ in Transitional Justice and the Rule of Law in New Democracies, Ed by AJ McAdams, Nôtre Dame: University of Nôtre Dame Press. 31 See Dugard (1997) and submission by Professor Don Foster to the Commission, May 1997.
Organisations, instruments and judicial decisions that declared apartheid a crime against humanity
The United Nations

6 The General Assembly on numerous occasions labelled apartheid a crime against humanity32 .

7 In 1976, the United Nations Security Council unanimously stated that “apartheid is a crime against the conscience and dignity of mankind.”33

8 Subsequent Security Council resolutions expressed agreement with the 1976 resolution.34

9 On 13 December 1984, the Security Council passed Resolution 556, which, in Paragraph 1, declared that apartheid is a crime against humanity35 .

 
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