TRC Final Report

Volume 5

Chapter 6

Subsection 6

67 Evidence before the Commission indicates that all of the above were responsible for gross violations of human rights – including killing, attempted killing, torture and severe ill treatment – at different stages during the mandate period and that, to varying degrees, such violations entailed deliberate planning on the part of the organisations and institutions concerned, or were of such a nature that the organisations are accountable for them.

68 At the same time, the Commission is not of the view that all such parties can be held to be equally culpable for violations committed in the mandate period. Indeed, the evidence accumulated by the Commission and documented in this report shows that this was not the case. The preponderance of responsibility rests with the state and its allies.

69 Even if it were true that both the major groupings to the conflicts of the mandate era – the state and its allies and the liberation movements – had been equally culpable, the preponderance of responsibility would still rest with the state.

70 The mandate to investigate and report on violations committed by all parties to the conflict placed a responsibility on the Commission to work in a balanced and even-handed way. This is an issue with which the Commission grappled long and hard and in respect of which it has been repeatedly criticised. In attempting to develop a framework in which to exercise such a responsibility meaningfully, the Commission was guided by three broad principles:

71 In the first place, as argued in the chapter on The Mandate, the Commission followed the internationally accepted position that apartheid was a crime against humanity. Accordingly, it upheld and endorsed the liberation movements’ argument that they were engaged in a just war. Further, the Commission was also guided by international humanitarian law, and specifically the Geneva Conventions, in its evaluation of the concept of a ‘just war’. Just war does not legitimate the perpetration of gross violations of human rights in pursuit of a just end. Hence the Commission believes that violations committed in the course of a just war should be subjected to the same rigorous scrutiny as violations committed by the former state. The Commission’s position in this regard is clearly articulated in the chapter on The Mandate. A just cause does not exempt an organisation from pursuing its goals through just means. Moreover, the evidence shows that the perpetration of gross violations of human rights by non-state actors often took place in circumstances where they were acting in opposition to the official state ideology and the policy of apartheid. In this sense, it was the state that generated violent political conflict in the mandate period – either through its own direct action or by eliciting reactions to its policies and strategies.

72 Secondly, the Commission is of the view that the measures used to assess the actions of a legally constituted and elected government cannot be the same as those used in the case of a voluntary grouping of individuals who come together in pursuit of certain commonly agreed goals. A state has powers, resources, obligations, responsibilities and privileges that are much greater than those of any group within that state. It must therefore be held to a higher standard of moral and political conduct than are voluntary associations operating within its political terrain – particularly where they operate underground with limited communication and less-developed structures of accountability.

73 Third, the Commission has always been violation driven. Its task in this respect was to identify those responsible for gross human rights violations. Having identified the former state and the IFP as undoubtedly responsible for the greatest number of violations, the Commission directed its resources towards the investigation of those bodies.

74 It would, however, be misleading and wrong to assign blame for the gross violation of human rights only to those who confronted each other on the political and military battlefields, engaged in acts of commission. Others, like the church or faith groups, the media, the legal profession, the judiciary, the magistracy, the medical/health, educational and business sectors, are found by the Commission to have been guilty of acts of omission in that they failed to adhere or live up to the ethics of their profession and to accepted codes of conduct.

75 It is also the view of the Commission that these sectors failed not so much out of fear of the powers and wrath of the state – although those were not insignificant factors – but primarily because they were the beneficiaries of the state system. They prospered from it by staying silent. By doing nothing or not enough, they contributed to the emergence of a culture of impunity within which the gross violations of human rights documented in this report could and did occur.

76 These then are, in summary, the main findings of the Commission, while more specific findings appear in the body of the report. The Commission’s case in regard to the primary actors to the conflicts of the past is developed below.