TRC Final Report

Volume 6

Section 5

Chapter 2

Subsection 6

State responsibility for extrajudicial killings

72. The Commission noted in its Final Report that, as the levels of conflict intensified in the country, the security forces came to believe that it was far preferable to kill people extrajudicially than to rely on the legal process. Many amnesty applicants testified to this in their applications. Deaths in detention began in the 1960s and were attributed to suicides, accidents and natural causes. ^{3 7}

73. Thereafter came the clandestine killings and the death squads. A factor that may account for the rise in extrajudicial deaths and the setting up of death squads was the law that required an inquest in the case of an unnatural death. In order to have an inquest, a body must be produced and examined. While the dead cannot speak for themselves, a forensically examined body could and often did.

74. Inquests are the judicial arena in which the magistracy has shown blind and obdurate loyalty to the former state over the rule of law. In most inquest hearings, despite evidence to the contrary, the word of the police and particular members of the Security Branch was accepted almost unquestioningly, often leaving families and those who defended them astonished.

75. The value of the inquest proceedings was that, in many instances, families of victims were represented by lawyers, who did their utmost to uncover the truth and used the law to do it. This is where the reputation of the former government came unstuck. The apartheid government was obsessed with rule by law, and laws were created to cover almost every illegitimate act they could get away with. However, it was legal proceedings in inquest matters that stripped away the veneer of legitimacy and revealed the venality of the agents of the state. The adverse publicity that the government attracted abroad as a result of these deaths in detention forced the state to go underground and look for other mechanisms to deal with persons perceived to be political opponents.

76. Brigadier Jack Cronje [AM2773/96], one of the first officers to appear before the Amnesty Committee, testified that the Security Branch was given orders in 1986 to drop all restraint when dealing with the enemies of the state.

It didn’t matter what was done or how we did it, as long as the floodtide of destabilization, unrest and violence was stopped.

77. This, in effect, gave the security forces carte blanche to maim and kill, allowing the former apartheid state to move even further into the criminal arena. This was particularly so in the case of its internal operations, where it had to operate at a covert and clandestine level so that no operation was traceable to the state. It was this that led directly to the setting up of various death squads in the country – such as the Civil Co-operation Bureau (CCB) and Vlakplaas – and the training of surrogate forces such as the hit squads in KwaZulu and Natal.

78. In its quest for legality, the former state tried to draw a veil of legitimacy over its operations in the neighbouring states. Even today the military argues that its operations were legitimate, authorised and thus legal. Raids were increasingly openly acknowledged. These raids remain questionable in international law.

79. The fact that our amnesties may not be valid across our borders has meant that there have been almost no applications for amnesty from members of the military.

80. A factor that the state also relied on was that assassinations could be blamed on the liberation movements and, where people disappeared, the police often claimed that those involved had gone into exile. The fact that there was nobody to draw attention to the actions of the state meant that there was no call for an inquiry or inquest, thus creating a further level of impunity for agents of the state. As time went on, the deeds became more daring and more grisly. This is, of course, the problem with license and impunity, where political actions become increasingly blurred and descend into total criminality. It accounts for why people like Colonel Eugene de Kock and some amnesty applicants will remain in custody. Some of their actions were acts of sheer criminality.

81. The Commission relied on a preliminary analysis of amnesty applications. Three years later, now that the amnesty process is complete, it is clear that the information that emerged from the amnesty hearings confirms the patterns and classifications made in the Final Report.

82. The archive of the Commission has been considerably enriched by the detail that has emerged through the amnesty hearings.

83. Amnesty applications can be categorised as follows: a abductions followed by killing (discussed earlier); b assassinations of persons considered to have a high political profile both inside and outside the country; c assassinations of individual MK and Azanian People’s Liberation Army (APLA) personnel both inside and outside the country, and d cross - border raids.

84. Again, if one examines the picture that emerges from the amnesty process, it is clear that authorisation for individual assassinations took place at different levels. Agents believed that they had a general mandate to kill political opponents whom they believed to be contributing towards the instability of the state. Evidence in the ‘Pebco Three’ hearing confirms that there had been an instruction from the Minister of Law and Order to ‘destabilise the Eastern Cape’. The testimony in amnesty hearings supports the view that, as far as external operations were concerned, approval was usually sought from Security Branch headquarters.

85. TREWITS³⁸, which was set up in 1986, probably re p resented the state’s attempt to collect and share intelligence between all structures, with the intention of operating in a more co-ordinated manner and planning joint operations. Given the fact that both National and Military Intelligence sat on this structure, the state cannot deny that intelligence was used to identify and then eliminate those regarded as political opponents.

86. It is the entrapment operations of the state that really engender a sense of revulsion and horror because they targeted not trained military cadres, but callow township youth who were perceived to be threats to the state because of their political beliefs. The operations involved mainly youth and school activists who were perceived to be potential MK recruits. The nature of the different operations reveals real evil in their planning and execution. The incident of the ‘Nietverdiend Ten ’³⁹ and the KwaNdebele youth⁴⁰ highlight the grisly machinations of state agents.

87. The supply of defective hand grenades to the Duduza youths by the Soweto security structure defies all rules of justice.⁴¹ What kind of state targets its own youth in this way? How can a politician fail to ask questions after hearing about these incidents?

88. The decision to grant amnesty in this instance raised some serious questions for the Commission. Did we not take reconciliation too far? Surely the killing of youths cannot be justified as political, and raises questions about the proportionality factor.

89. The amnesty applicants have confirmed their own role in the extrajudicial killings of political opponents. In terms of their actions, they have breached the provisions of the Geneva Conventions and the principles enshrined in international humanitarian law. They have also contravened South Africa’s own domestic law. In confirming that they acted as members of the security forces, their actions c reate a problem for the former state, which must shoulder the responsibility for their actions. There can be little doubt that, in setting up these covert death squads, the former state could have had no misunderstanding about the intention of these units, and indeed intended that those identified as political opponents would be identified, targeted for assassination and ultimately killed. When a state resorts to acting or causing its agents to act outside the boundaries of the law, it acts criminally and must be seen as a criminal state. In the Commission’s opinion, the former state must be held responsible for the killings of political opponents in that it knowingly planned, authorised, sanctioned, condoned and covered up the commission of these unlawful acts. It acted extrajudicially and criminally, thus leading the Commission to conclude that it ultimately became a criminal state.

90.The findings of the Amnesty Committee support that view.