TRC Final Report

Volume 6

Section 5

Chapter 1

Subsection 7

The doctrine of state responsibility

60. The doctrine of state responsibility has emerged through the development of customary international law. In summary, it states that the state is accountable for the commission of gross human rights violations as follows:

a It is strictly responsible for the acts of its organs or agents or persons acting under its control.

b It is responsible for its own failure to prevent or adequately respond to the commission of gross human rights violations.

61. It is important to note that South Africa did not until recently become a state party to the principal international human rights instruments. In 1998, the newly democratically elected government ratified the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide convention) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment(CAT).

62. This does not mean that South Africa was not bound by these principles of customary international law at the relevant times. They are regarded as expressions of customary international law on state responsibility for human rights violations and have emerged from the broad rubric of human rights law, which includes the Conventions refer red to above, the Universal Declaration of Human Rights, regional human rights instruments such as the European Convention for the Protection of Human Rights and Fundamental Freedoms, the American Convention for Human Rights, the African Charter on Human and People’s Rights, and the judgments of the various human rights bodies such as the decisions of the European Court of Human Rights, the Inter-American Court and Commission of Human Rights and the Human Rights Committee.

63. The decisions of the tribunals for the former Yugoslavia and Rwanda have also had an impact on how the law has developed.

64. The basic principles that have emerged from international customary law can be summarised as follows:

Interpretation of these principles by international human rights bodies, which have application to the question of state accountability

65. In the Velasquez-Rodrigues case¹⁶, the Inter-American Commission on Human rights held that states are strictly responsible for the conduct of their organs or agents who violate human rights norms, whether or not such actors have overstepped the limits of their authority.

66. Thus a state will be held responsible for the actions of an official where excessive force is used that is contrary to law and policy. In South Africa, the practice of the former state was to indemnify the security forces in those incidents where they had used excessive force.

67. It is important to note that, in terms of international law, the state will be held accountable for the act of an agent. The motive or intent of the agent is considered to be irrelevant to the analysis of the crime. In addition, if an agent of the state uses his or her official status to facilitate or cover up a murder s/he commits for personal reasons, the state may still be held responsible for such a g ross violation.

68. Another important principle that has evolved from the Velasquez-Rodrigues case is the fact that a state is held responsible for violations perpetrated by any of the organs or structures under its control. In these instances, state responsibility may be invoked independently of any individual responsibility for the crime. All that is required is for the claimant to establish that an agent of the state committed the violation. The fact that the identity of the individual agent who perpetrated the violation is not established does not matter.

69. A difficulty that has been identified in matters of this nature is that the state is the repository of information and is also the party most interested in suppressing the truth. Circumstantial evidence is often all that exists. International human rights law is cognizant of this and thus places the burden on the state to justify it’s actions in the face of credible allegations of abuses by state agents.

70. In the case of Kurt v Turkey¹⁷, the European Court of Human Rights held that, once the applicant had shown that the victim was in the custody of the security forces, the responsibility to account for the victim’s subsequent fate shifted to the authorities.

71. In the case of Ireland v UK, the European Court of Human Rights applied a strict liability test when dealing with the government of the United Kingdom. In this case, the European Court considered allegations by the Irish¹⁸ that the United Kingdom authorities operating in Northern Ireland were engaged in practices that violated Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In particular, the Irish alleged that these practices included extrajudicial arrest and internment as well as the use of a coercive set of ‘five techniques’ in the process of interrogation in order to induce confessions.

72. The court found that that the actions of the UK authorities amounted to a practice ‘incompatible with the convention’, noting specifically ‘the accumulation of identical or analogous breaches which are sufficiently numerous and interconnected to amount not merely to isolated incidents or exceptions but to a pattern or system’.

73. Having heard the evidence, the court commented as follows:

It is inconceivable that the higher authorities of a State should be unaware of the existence of such a practice. Furthermore, under the convention, those authorities are strictly liable for the conduct of their subordinates; they are under a duty to impose their will on subordinates and cannot shelter behind their inability to ensure that it is respected .

74. The development of the principle of strict liability in dealing with states reinforces that liability in international law. In other words, the state is under an obligation to organise its institutional apparatus so as to ensure that fundamental human rights are protected and, where they are violated, to ‘investigate and punish those responsible and to provide reparation to the victim’.