TRC Final Report

Volume 1

Chapter 4

Subsection 9

State and non-state actors

77 Thus, the Commission adopted the view that human rights violations could be committed by any group or person inside or outside the state: by persons within the Pan Africanist Congress (PAC), the IFP, the South African Police (SAP), the South African Defence Force (SADF), the ANC or any other organisation.

78 It is important to note, however, that this wider application of human rights principles to non-state entities is a relatively recent international development. Traditionally, human rights focused on relations between state and citizens and on protecting the individual from the power of the state. Private non-state entities were not subject to the same restrictions and scrutiny. The traditional exceptions to this have been found in the area of war crimes and crimes against humanity which, even under the traditional definition of human rights, can be committed by any individual or entity.

79 The Act establishing the Commission adopted this more modern position. In other words, it did not make a finding of a gross violation of human rights conditional on a finding of state action. This extended view of human rights prohibitions reflects modern developments in international human rights law. It also contributes to national unity and reconciliation by treating individual victims with equal respect, regardless of whether the harm was caused by an official of the state or of the liberation movements.

80 At the same time, it must be said that those with the most power to abuse must carry the heaviest responsibility. It is a matter of the gravest concern when the state, which holds the monopoly on public force and is charged with protecting the rights of citizens, uses that force to violate those rights. The state has a whole range of powerful institutions at its disposal - the police, the judicial system, the mass media, parliament - with which it may denounce, investigate and punish human rights violations by private citizens or non-governmental groups. When this power is used to violate the rights of its citizens, as described in the report of the Chilean commission, their normal vulnerability is transformed into utter defencelessness.

81 This sensitivity to the unequal power relationships between state and non-state agents should be seen as an attempt to help lay the foundation for the rehabilitation of state institutions in order to hold present and future governments accountable for their use and abuse of power. It is thus central to the effort to prevent future violations of human rights.

■ DEFINING GROSS VIOLATIONS OF HUMAN RIGHTS

82 The Act did not provide clear guidelines for the interpretation of the definition of“gross violations of human rights”. In order to determine which acts constitutedgross violations of human rights, it was important to interpret the definition andto consider whether there were any limitations excluding particular acts fromthis definition. The Act used neutral concepts or terms to describe the variousacts that constituted a gross violation of human rights. For example, ‘killing’and ‘abduction’ were used rather than murder or kidnapping. Clearly, theintention was to try to avoid introducing concepts with a particular content interms of the applicable domestic criminal law. This was to avoid equating what was essentially a commission of enquiry with a court of law. If the full array of legal technicalities and nuances had been introduced into the work and decision-making functions of the Commission, its task would have been rendered immensely complex and time-consuming. It would also have contradicted the clear intention that the Commission should fulfil its mandate as expeditiously as possible. It could also have opened the way for a repetition of past injustices, with victims of the political conflict being excluded by legal technicalities from claiming compensation for their losses. Thus, it was clear that the underlying objective of the legislators was to make it possible for the Commission to recognise and acknowledge as many people as possible as victims of the past political conflict. This objective, in its turn, was central to the Commission’s overall task to promote national unity and reconciliation.

83 Two distinct enquiries were envisaged by the Act insofar as it concerned the question of gross violations of human rights:

a Was a gross violation of human rights committed and what was the identity of the victim? (section 4(b))

b What was the identity of those involved in such violations and what was their accountability for such violations? (section 4(a)(iii), (v))

84 The first is a factual question about the conduct involved: in other words, does the violation suffered by the victim amount to one of the acts enumerated in the definition? This enquiry does not involve the issue of accountability. The question of whether or not the conduct of the perpetrator is justified is irrelevant. This was in accordance with the intention to allow as many potential victims as possible to benefit from the Commission’s process.

85 The second enquiry is stricter and more circumscribed, involving technical questions like accountability. Findings emerging at this level of enquiry may have grave implications and impinge upon the fundamental rights of alleged perpetrators. This enquiry involves, therefore, both factual and legal questions.

86 Hence, the Commission could find that a gross human rights violation had been committed because there was a victim of that violation. It had, however, to apply a more stringent test in order to hold a perpetrator accountable for that violation.

87 It was in relation to this more rigorous test that issues such as justification were taken into account. A perpetrator could not be held accountable if the conduct in question was legally justified. Thus, for example, a person who killed in self defence could not be held accountable as a perpetrator of a gross violation of human rights. This raised the question of whether the notion of unlawfulness was implicit in the definition of gross violations of human rights in the Act. In other words, must a particular act be unlawful for it to amount to a violation of human rights in the sense of a crime or a delict? In order to answer this question, it is important to take into account the fact that the issue of justification (for example, self defence and necessity) does not affect the nature of conduct but excuses its consequences. A legitimate killing in self defence still amounts to the deprivation of life and a violation of the right to life, but the law does not hold the perpetrator liable for the consequence of this conduct. Thus, although justification does not affect the nature of the act, it does affect the issue of accountability.

88 As a consequence, the position adopted by the Commission was that any killing, abduction, torture or severe ill treatment which met the other requirements of the definition amounted to a gross violation of human rights, regardless of whether or not the perpetrator could be held accountable for the conduct.

89 It is important to note that the categories of victims and perpetrators are defined in terms of specific acts, such as killing. The categories are not, however, mutually exclusive. Thus, for example, a person who may, in one situation, be a victim of severe ill treatment by the police may, in another, become a perpetrator of a gross violation of human rights through his or her killing of a political opponent.

90 This position was applied to a large majority of violations which took place as a result of what might loosely be termed civilian conflict: for example, conflicts between IFP and ANC or United Democratic Front (UDF) supporters or between youth and the police in townships.