TRC Final Report

Volume 6

Section 5

Chapter 1

Subsection 4

Importance of this classification for reparation

25. The recognition and finding by the international community that apartheid was a crime against humanity has important consequences for the victims of apartheid. Their right to reparation is acknowledged and can be enforced in terms of international law.

26. The classification of apartheid as a crime against humanity emphasises the scale and depth of victimisation under apartheid and, to that extent, adds further weight and urgency to the need to provide adequate and timely responses to the recommendations of the Commission. It also enhances the legitimacy of the Commission’s recommendations in respect of reparations, which now require urgent implementation. The classification also gives greater legal legitimacy to the Commission’s recommendations for the institutional reform of apartheid institutions (including the security forces, public administration, the judiciary and business).

27. The Constitutional court in the Azanian People’s Organisation (AZAPO) case took the issue further. Not only did it recognise the rights of victims, but it also confirmed the statutory duty of the state to provide an appropriate reparation policy for victims emanating from the Commission process.

Importance of this classification for the struggle of the liberation movements against the apartheid state

28. As elaborated more fully in the section on African National Congress (ANC) violations (see below), the legal designation of apartheid as a crime against humanity has important consequences for the struggle conducted by the liberation movements. In terms of international law, the designation of apartheid as a crime against humanity has ensured that the legal status accorded to the war waged against the former apartheid state is that of a ‘just war’ or ‘ius ad bellum’ .^{1 0}

29. The effect of this designation is to render as just the moral, political and legal status of the struggle against apartheid.

30. The criteria for determining whether a struggle can be regarded as a just war a re: (i) that those who waged it turned to armed conflict to fight an unjust system, and (ii) that they did this in a context where alternative routes for legal and political action had not only failed, but were likely to trigger further repression.

31. Thus those who waged war against the illegitimate apartheid state had legitimacy conferred upon them in terms of international law.

32. However, a distinction needs to be drawn between the means and the cause. The fact that the cause is just does not automatically confer legitimacy on all conduct carried out in the pursuit of that war (ius in bello). International law imposes a continued obligation on the liberation struggle to employ just means, even in the conduct of a just war.

33. The laws that apply to the conduct of a just war rest on two broad principles: the principle of necessity and the principle of humanity. Simply interpreted, this means that ‘that which is necessary to vanquish the enemy may be done’, but that ‘that which causes unnecessary suffering is forbidden’.

34. The balancing of these two principles has been the subject of much debate and writing in international law.

35. In essence, these principles have meant that combatants in a conflict or war situation enjoy certain rights. If they are captured and disarmed, they are considered to be prisoners of war and must be treated accordingly. This requires of the party in command of the situation that prisoners of war be safe-guarded against execution or deliberate injury. In the event that they are hors de combat^{1 1} because they have surrendered or have been wounded or capture d and disarmed, they must be protected. Warfare cannot be continued against them. These principles also apply to non-combatants or civilians (as they are now known). The laws of war re quire that civilians or non-combatants may not be subjected to deliberate or indiscriminate attacks, reprisal killings, seizure s , hostage taking, starvation or deportation, nor may they have their cultural objects and places of worship destroyed .

36. Both civilians and combatants in conflict circumstances are protected against criminal sanctions unless they have been accorded due process of law.