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TRC Final Report
Page Number (Original) 78
Paragraph Numbers 109 to 118
■ MAKING FINDINGS OF GROSS VIOLATIONS OF HUMAN RIGHTS
109 As the Commission embarked on the road of seeking to restore the dignity of victims through extensive statement taking and public hearings, it was confronted with the sometimes difficult task of interpreting the categories of acts contained in the definition of gross violations of human rights, and of formulating criteria to determine the ‘political’ motivation of these acts of killing, torture, abduction and severe ill treatment.
Torture and abduction
110 ‘Torture’ and ‘abduction’ were relatively easy to define. The following internationally accepted definition of torture guided the Commission in its work:
The intentional infliction of severe pain and suffering, whether physical or mental, on a person for the purpose of (1) obtaining from that or another person information or a confession, or (2) punishing him for an act that he or a third person committed or is suspected of having committed, or (3) intimidating him or a third person, or (4) for any reason based on discrimination of any kind. Pain or suffering that arises only from, inherent in, or incidental to, a lawful sanction does not qualify as torture.19
111 ‘Abduction’ was defined as the forcible and illegal removal or capturing of a person. This definition did not include arrests and detentions that satisfied universally recognised international human rights standards, nor the capturing of an enemy soldier in a situation of armed conflict. It was a category applied in the majority of cases where people ‘disappeared’ after having last been seen in the custody of the police or of other persons who were using force.
112 In defining the category of ‘killing’, some difficulties were presented by the killing of combatants. The Commission’s position in this regard is discussed earlier in this chapter. Many killings reported to the Commission were of people described as innocent bystanders caught in the crossfire. These were found to be victims of gross violations of human rights if the other conditions were fulfilled.
113 The Commission considered the executions of activists or other persons for politically-motivated crimes both within the established legal system and in other settings (for example, in ‘peoples’ courts’, or in tribunals or summary hearings conducted by the liberation movements). After considerable debate, the Commission agreed to consider all such executions, whether carried out by the state or the liberation movements, as gross violations of human rights. This decision was taken in the light of the need to promote a national and international human rights culture. It also took into account the lack of legitimacy of the legal system and the laws of the time, as well as the absence of minimal due process protections and proper forums of adjudication.
Severe ill treatment
114 ‘Severe ill treatment’ is not a term that is recognised either in South African or in international law, although South African law recognises concepts such as grievous bodily harm and ill treatment. Both South African constitutional law and international law do, however, recognise cruel, inhuman, or degrading treatment or punishment, which is sometimes colloquially referred to as ill treatment.
115 Severe ill treatment can be broadly defined.20 The legislators included this category to give the Commission some discretion or flexibility in determining the breadth of the mandate. In defining severe ill treatment, the Commission was mindful of the general principle of legal interpretation which holds that terms found in sequence are presumed to be similar in kind. In other words, the acts constituting ‘severe ill treatment’ were intended to be interpreted as similar in degree to other acts described (that is, killing, torture, and abduction). The Commission also examined similar concepts in South African and international law to provide contextual support for a working definition. The international prohibition against cruel, inhuman, or degrading treatment or punishment, for example, clearly encompasses a broader category of violations than that intended by severe ill treatment.21 The category of ill treatment found in South African law is also clearly broader in scope than severe ill treatment.22 The Commission’s definition of severe ill treatment was thus designed to include the extreme acts of “cruel, inhuman, or degrading treatment” under international law, and ill treatment under South African law.
116 In the light of these considerations, the following definition of severe ill treatment was adopted:
Acts or omissions that deliberately and directly inflict severe mental or physical suffering on a victim, taking into account the context and nature of the act or omission and the nature of the victim.
117 Whether an act or omission constituted severe ill treatment was thus determined on a case-by-case basis23. The Commission determined that, in order to qualify as severe ill treatment, an act should meet the general criteria that apply to all gross violations of human rights.24
118 In addition, the following factors were be taken into account in determining whether particular suffering or hardship was severe: first, duration (the longer the suffering or hardship lasted, the more easily it qualified as severe); second, physical or mental effects (the more serious and permanent the physical or mental effects, the more severe the treatment); third, the age, strength and state of health of the victim. The very young and the very old, the weak and the infirm required less suffering or hardship to meet the criteria of severe. These criteria were interdependent - the more one criterion was satisfied, the less relevant were the others. In other words, a severe beating of a sick, elderly person might have qualified as severe ill treatment even though the beating lasted less than a minute.19 Article 1(1), Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. 20 Generally, human rights prohibitions are defined broadly rather than narrowly. See, for example, ‘Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment’, (G.A. res. 43/173, annex, 43 UN GAOR Supp (No. 49) at 298, UN Doc. A/43/49 (1988)). Principle 6 holds that the prohibition against cruel, inhuman, or degrading treatment or punishment should be interpreted “so as to extend to the widest possible protection of abuses.” 21 In a memorandum to the parliamentary Portfolio Committee on Justice, the Chief State Law Adviser defined severe ill treatment as ‘extreme maltreatment or cruelty.’ This narrowing of the scope of severe ill treatment is not inconsistent with the generally broad definition of human rights prohibitions. The Commission was not created to prevent or prohibit all contemporary violations of human rights on an ongoing basis, but to analyse and describe a particular subset of human rights abuses that occurred in the past. 22 In determining the scope of the prohibition against inhuman or degrading treatment, the European Court of Human Rights has noted that there are certain acts of violence that do not reach the minimum level of severity necessary to fall under the prohibition. Thus certain rough treatment of prisoners in custody, such as a few slaps or blows of the hand to the head or face would not be prohibited and do not qualify as severe ill treatment. (However, repeated blows to the head resulting in severe injury would clearly fall under the prohibition of both cruel, inhuman, or degrading treatment and severe ill treatment). See European Commission on Human Rights Appl. No. 5310/71; 1976 Yearbook, European Convention on Human Rights 512. See also Denmark, France, Norway, Sweden and Netherlands v Greece (1969) 12 Yearbook 501 (European Commission of Human Rights), and Ireland v United Kingdom, Opinions of 1976, at pp. 388-389 (Commission opinion of 25 January 1976). 23 This case-by-case approach with an emphasis on context is, in fact, the approach taken by South African courts with respect to ‘illtreatment’. See S v Lewis, 1987 (3) SA 24 (C) (Brennan, J.) where it was argued that severe is a relative concept, meaning more severe than the circumstances warrant. 24 See above definition of gross violations of human rights.