TRC Final Report

Volume 6

Section 5

Chapter 1

Subsection 1

Legal Framework

THE LEGAL FRAMEWORK WITHIN WHICH THE COMMISSION MADE FINDINGS WITHIN THE CONTEXT OF CURRENT INTERNATIONAL LAW

■ INVESTIGATING GROSS HUMAN RIGHTS VIOLATIONS

1. The Truth and Reconciliation Commission (the Commission) was charged with the task of investigating and documenting gross violations of human rights committed during the period March 1960 to May 1994. In the course of doing so, it was required to compile as complete a picture as possible of the conflicts of the past.

DEFINING GROSS HUMAN RIGHTS VIOLATION S

2. The Promotion of National Unity and Reconciliation Act No. 34 of 1995, (the Act) defined a gross human rights violation as:

the violation of human rights through (a) the killing, abduction, torture or severe i l l - treatment of any person; or (b) any attempt, conspiracy, incitement, instigation, command or procurement to commit an act referred to in paragraph (a), which emanated from conflicts of the past and which was committed during the period 1 March 1960 to the cut-off date [10 May 1994] within or outside the Republic, and the commission of which was advised, planned, directed, commanded or ordered, by any person acting with a political motive;¹

3. The language used in the Act to describe gross human rights violations deliberately avoided the use of terms associated with the legal definitions of crimes in South African law. Thus ‘killing’ was used rather than ‘murder’ in order to allow the Commission to examine these violations without having to consider legal justifications or defences used by perpetrators for such conduct. The Commission could therefore make findings that those who had suffered these violations were victims. Chapter Four of Volume One sets this out more elaborately.

Interpreting the definitions

Killing

4. ‘Killing’ was interpreted to include the following:

a the killing of civilians, irrespective of whether they were deliberately targeted or innocent bystanders caught in the crossfire, and

b those who were executed for politically motivated crimes, irrespective of whether the killing had the sanction of the state, tribunals set up by the liberation movements or ‘people’s courts’ established by communities.²

5. The only exception that the Commission took into account was that of combatants who had died in the course of the armed conflict and were clearly identified as such. The Commission’s position in this regard is further elaborated in Volume One, Chapter Four of the Final Report. In this the Commission was guided by the Geneva Conventions’ distinction between ‘combatants’³ and ‘ protected persons’⁴ .

Torture

6. The Commission accepted the international definition of torture: that is, the intentional infliction of severe pain and suffering, whether physical or mental, on a person for any of the following purposes: a obtaining from that or another person information or a confession; b punishing a person for an act that s/he or a third party committed or is suspected of having committed; c intimidating her, him or a third person; or d any reason based on discrimination of any kind.

7. Pain or suffering that arises from, is inherent in, or is incidental to a lawful sanction does not qualify as torture .⁵