TRC Final Report

Volume 5

Part minority_position

Subsection 8

■ THE PERIOD 1990 TO 1994

55 The period 1990 to 1994 is characterised in policy terms as one of negotiation towards a Constitution based on the principle of universal adult franchise. Even to suggest that the government had a secret agenda of human rights violations during this period would border on lunacy. To depict De Klerk as having had a double agenda or even, given his track record, of covering up, would be an injustice to him.

56 Gross human rights violations continued during this period, and may even have increased; though their nature changed. Conflict continues in parts of the country to this day, which strongly suggests that it would be an over-simplification to ascribe the conflicts of the past only to institutional structures.

■ APARTHEID AS A CRIME AGAINST HUMANITY

57 There is little room for debate that apartheid has been found by instruments of the international community to be a crime against humanity. The report, in its appendix to the chapter on The Mandate in Volume One, adequately addresses this issue. However, it needs to be further contextualised.

58 I have already alluded to the fact that apartheid policy from 1948 to 1960 was applied alongside the practices of colonialism. Measured by the contemporary yardstick of international human rights, it always was a crime against humanity. Slavery is a crime against humanity. Yet Paul, in his letters to the Ephesians and Colossians, is uncritical of the institution and discusses the duties of slaves and their masters. Given a different international balance of power, colonialism too might have been found a crime against humanity. Yet apartheid was first declared a crime against humanity by the United Nations General Assembly in 1973 – and not unanimously so. Moral imperatives are phenomena of their times and locations.

59 The Commission does not make any major contribution by again finding apartheid to be a crime against humanity. No doubt, it contributes to the needs and agendas

of human rights organisations and the cause of a human rights culture in general

by highlighting what is now trite international law.

60 The question is whether such an unqualified finding does not create a double-edged sword in terms of the objectives of national unity and reconciliation. While the endorsement of a position in international law may contribute to national unity, it can as easily be divisive if separated from its historical context. This was the subject of debate within the Commission.

61 The permanent International Criminal Court has recently been established. Within its jurisdiction is the trying of crimes against humanity. There are efforts to have apartheid and apartheid crimes tried at this forum. The Commission is not prepared to recommend that the court’s powers be limited with respect to prosecution of apartheid as a crime against humanity and to past apartheid crimes.

62 In terms of conventions on apartheid as a crime against humanity, those who were functionaries of the system, politicians and bureaucrats alike, are considered criminals. Our government has already publicly taken a position against conferring such jurisdiction on the Court. The Commission would not take a position.

63 All gross human rights violations as defined in the Act constituted crimes under the laws that operated during the apartheid years, and as such may well be tried locally. Further, international law does not provide for the granting of amnesty for a crime against humanity. If international law were to be applied, the Commission might as well never have been established. I do not have to elaborate on consequences.

64 It is stated in the report that apartheid cannot be likened to genocide. By association, though, comparison continues. The question should seriously be asked whether an investigation of apartheid under international law would have any present or future legal or political value. While genocide remains a potential threat in many societies, apartheid as a system is dead and buried forever.

65 There is a certain wisdom in politics; so too in international politics. No tribunal was ever set up to try apartheid or apartheid crimes. It is unlikely that the international community will now override local political positions. The folly of doing so needs to be placed on record. It was a major disappointment to me that the Commission, primarily because of resistance of some Commissioners, would not support this proposal. At the time of writing this contribution, it has come to

my notice that a fellow Commissioner has again formulated a proposal along these lines. The outcome is not yet known.