TRC Final Report

Volume 6

Section 5

Chapter 2

Subsection 10

Knowledge

131. Knowledge has been elaborated in international law to include: ‘knew or had information which should have enabled them to conclude in the circumstances at the time’; ‘knew or had reason to know’; ‘either knew or, owing to the circumstances at the time should have known’, and ‘either knew, or consciously disregarded information which clearly indicated that subordinates have or are about to commit international crimes’. International law takes into account the law as elaborated after the World War II trials and the terms of Additional Protocol I to the Geneva Conventions, which was written in 1977.

132. The ICTY interpreted customary international law in the Celebic case to be that a superior cannot be held responsible unless:

He effectively knows, through direct or circumstantial evidence at his disposal, that his subordinates have committed or are about to commit the crimes; or

He has reason to believe that they have or are about to commit such crimes.

133. The Celebic case draws a distinction between military commanders and civilian superiors, suggesting that a higher standard of proof will be required in the case of civilian superiors.

134. In the Blaskic case, the trial chamber restated the Celebic decision and then conducted its own review of the war crimes case from World War II. The trial chamber concluded that:

after World War II, a standard was established according to which a commander may be liable for crimes by his subordinates if he failed to exercise the means available to him to learn of the offence and, under the circumstances, he should have known and such failure to know constitutes criminal dereliction .

135. After turning to the Additional Protocol, the trial chamber in this judgment found that:

if a commander has exercised due diligence in the fulfilment of his duties lacks knowledge that crimes are about to be or have been committed, such lack of knowledge cannot be held against him. However, taking into account his particular position of command and the circumstances prevailing at the time, such ignorance cannot be a defense where the absence of knowledge is the result of negligence in the discharge of his duties: this commander had reason to know within the meaning of the Statute.

136. This standard does not mean that the superior must have information on subordinate offences in his actual possession in order for liability to attach. It is sufficient that the superior has some general information in his possession that, ‘would put him on notice of possible unlawful acts by his subordinates’. The information may be written or oral and does not need to be in the form of reports submitted pursuant to a monitoring system; nor does it have to provide specific information about unlawful acts. In the Celebic case, the Appeals Chamber posits, for example, that if a military commander has received information that some of the soldiers under his command have a violent or unstable character or have been drinking prior to going out on a mission, this may be considered as meeting the knowledge requirement. In this regard, the fact that the state used individuals like Eugene de Kock, Ferdi Barnard and others like them may attach liability to those who appointed them to carry out these deeds. They should indeed have expected them to do so because of the identification of quirks in their character.

Reasonable and necessary measures

137. The question of whether a commander took appropriate steps to prevent atrocities is a factual issue and is dependent on the circumstances of each case. International law is clear that, whilst a superior cannot do the impossible, he can be held responsible for failing to take measures within his real capacity. The ICTY has also held that punishing a perpetrator after the event does not satisfy this obligation if the commander had reason to know beforehand that crimes might be committed. It is not necessary that there should be a causal link between the superior’s omission and the violation.

138. The Kordic and Cerkez⁵⁵ cases deal with the twin obligations of preventing and punishing.

the duty to prevent should be understood as resting on a superior at any stage before the commission of a subordinate crime if he acquires knowledge that such a crime is being prepared or planned or when he has reasonable grounds to suspect subordinate crimes. The duty to punish naturally arises after a crime has been committed. Persons who assume command after the commission are under the same duty to punish. This dirty includes at least an obligation to investigate the crimes to establish the facts and to report them to the competent authorities, if the superior does not have the power to sanction himself. Civilian superiors would be under a similar obligation, depending upon the effective powers exercised and whether they include an ability to require the competent authorities to take action.

139. If one applies this test to some of the cross-border operations, a number of people could find themselves facing criminal action, given the fact that hardly anybody applied for amnesty for these operations.

140. General Coetzee testified as to his involvement in the Maseru raid and the raid on Gaborone. It is known that these raids were authorised by the former government, despite the fact that no minuted decision can be found in either the records of the State Security Council or Cabinet. Many high-ranking individuals, including Minister Vlok, have argued that, if such unlawful activity had been authorised, such authorisation would be reflected in minutes. The fact that these two raids were not reflected in minutes negates this argument.

141 It is clear that the Commission has no reason to change its findings. In addition, were the state to pursue a vigorous prosecution policy, many high-ranking politicians could find themselves sitting behind bars.