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TRC Final Report

Page Number (Original) 648

Paragraph Numbers 28 to 32

Volume 6

Section 5

Chapter 3

Subsection 4

SPECIFIC FINDINGS

28. The Commission made its findings based, in the main, on frank and substantial submissions by the ANC and the testimony of both the political and military leadership at public hearings. In addition, the Commission took into account the statements of victims and testimony received from amnesty applicants and during section 29 hearings.

29. The Commission stated that:

The ANC has accepted responsibility for all actions committed by members of MK under its command in the period 1961 to august 1990. In this period there were a number of such actions – in particular the placing of limpet and land-mines – which resulted in civilian casualties. Whatever the justification given by the ANC for such acts – misinterpretation of policy, poor surveillance, anger or differing interpretations of what constituted a ‘legitimate military target’ – the people who were killed or injured by such explosions are all victims of gross human rights violations of human rights perpetrated by the ANC. While it is accepted that targeting civilians was not ANC policy, MK operations nonetheless ended up killing fewer security force members than civilians.

30. With respect to the actions of MK during the armed struggle, the Commission found that:

Whilst it was ANC policy that the loss of civilian life should be avoided, there w e re instances where members of MK perpetrated gross violations of human rights in that the distinction between military and civilian targets was blurred in certain armed actions, such as the 1983 Church street bombing of the SAAF headquarters, resulting in gross violations of human rights through civilian injury and loss of life.
In the course of the armed struggle there were instances where members of MK conducted unplanned military operations using their own discretion, and, without adequate control and supervision at an operational level, determined targets for attack outside of official policy guidelines. While recognising that such operations were frequently undertaken in retaliation for raids by the former South African Government into neighbouring countries, such unplanned operations nonetheless often resulted in loss of life, amounting to gross violations of human rights. The 1985 Amanzimtoti shopping centre bombing is regarded by the Commission in this light.
In the course of the armed struggle the ANC through MK planned and undertook military operations which, though intended for military or security force targets sometimes went awry for a variety of reasons, including poor intelligence and reconnaissance. The consequences in these cases, such as the Magoo Bar incident and the Durban esplanade bombings were gross violations of human rights in respect of the injuries to and loss of lives of civilians.
While the Commission acknowledges the ANC’s submission that the former South African government had itself by the mid-1980’s blurred the distinction between military and ‘soft’ targets by declaring border areas ‘military zones’ where farmers were trained and equipped to operate as an extension of military structures, it finds that the ANC’s landmine campaigns in the period 1985 –1987 in the rural areas of the Northern and Eastern Transvaal cannot be condoned, in that it resulted in gross violations of the human rights of civilians including farm labourers and children, who were killed or injured, The ANC is held accountable for such gross human rights violations.
Individuals who defected to the state and became informers and/or members who became state witnesses in political trials and/or became Askaris were often labelled by the ANC as collaborators and regarded as legitimate targets to be killed. The Commission does not condone the legitimisation of such individuals as military targets and finds that the extra-judicial killings of such individuals constituted gross violations of human rights.
The Commission finds that, in the 1980’s in particular, a number of gross violations of human rights were perpetrated not by direct members of the ANC or those operating under its formal command but by civilians who saw themselves as ANC supporters. In this regard, the Commission finds that the ANC is morally and politically accountable for creating a climate in which such supporters believed their actions to be legitimate and carried out within the broad parameters of a ‘people’s war’ as enunciated by the ANC.

31. If these findings are analysed, it can be seen that they fall into the following categories : a attacks ostensibly on military targets but where civilians are killed and injure d ; b unplanned and indiscriminate attacks on targets outside of official policy guidelines and which affect civilians; c planned military operations that go wrong and where civilians are killed; d the deliberate targeting of individuals labelled as traitors; e attacks carried out by MK on both military and civilian targets, and f attacks carried out by supporters of the ANC. In this re gard, actions by UDF supporters and the SDUs are pertinent.

32. If one examines each of these categories in terms of the Geneva Conventions and Protocol I62, they are clearly defined as grave breaches.

a Articles 50, 51, 130 and 147 specify the following grave breaches of the four Geneva Conventions respectively: wilful killing; torture or inhuman treatment; biological experiments; wilfully causing great suffering; causing serious injury to body or health, and extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly.

b The following are considered to be grave breaches in terms of Articles 130 and 147 of the third and fourth Geneva Conventions: compelling a prisoner of war or a protected civilian to serve in the armed forces of the hostile power, and wilfully depriving a prisoner of war or a protected person of the rights of fair and regular trial prescribed in the conventions.

c The following are considered to be grave breaches of the fourth Geneva Convention in terms of Article 147: unlawful deportation or transfer; unlawful confinement of a protected person, and taking of hostages.

d Articles 11 and 85 of Protocol I specify what constitutes a grave breach. For our purposes, the following acts, when committed wilfully and if they cause death or serious injury to body and health constitute grave breaches: making the civilian population or individual civilians the object of attack; launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects; launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage civilian objects; making non-defended localities and demilitarised zones the object of attack; making a person the object of an attack in the knowledge that he is hors de combat, and depriving a person protected by the Conventions or by Protocol I of the rights of a fair and regular trial.

61 Ibid. 62 See Appendix 2 to Chapter One of this section.
 
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