TRC Final Report

Volume 1

Chapter 4

Subsection 11

102 The practice followed by the Commission was in accordance with these two considerations. The Commission also adopted the principle of giving the benefit of the doubt to those whose status as combatants or protected persons was unclear. These norms were applied as follows to the acts of killing, attempted killing and severe ill treatment falling within the Commission’s mandate:

a SADF soldiers or SAP members acting as soldiers (for example members of the Koevoet Unit) who were killed or seriously injured in combat (during, for example, the Namibian and Angolan ‘border wars’) and Umkhonto weSizwe (MK) or Azanian Peoples Liberation Army (APLA) soldiers killed or seriously injured in combat were not viewed as victims of gross violations of human rights as defined by the Act. This is consistent with the position taken in the submissions made to the Commission by the NP, FF, the South African National Defence Force (SANDF) and the ANC.

b Those combatants who were killed or seriously injured while they were unarmed or out of combat, executed after they had been captured, or wounded when they clearly could have been arrested were held to be victims of gross violations of human rights, and those responsible were held accountable.

c In cases where the Commission could not determine whether a combatant was out of combat, and therefore regarded as a protected person, it followed the precedent set by international humanitarian law. The Commission gave the benefit of the doubt to people killed or seriously injured in uncertain circumstances and found them to be victims of gross violations of human rights.

d Conscripted soldiers in the SADF were defined as combatants, even where the system of conscription obliged them to perform military service against their will, threatening heavy penalties if they did not do so. Like all combatants, they may have qualified as victims of a gross violation of human rights in certain circumstances, such as being subjected to torture or killed when injured.

Victims of the armed conflict

103 Soldiers on either side of the political divide, whether they were permanent force soldiers, conscripts or volunteers, as well as their families and loved ones, were, of course, victims in a more general sense. They were victims of the armed political conflict of the past and their deaths, injuries and losses should be remembered and mourned.

104 In a number of cases that came before the Commission, however, the decision was more complex.

105 In respect of the first consideration - namely, whether the person was a member of an “organised force ... under a command responsible to [a] Party to the conflict”¹⁸ - the Commission was faced with the problem of how to categorise members of a variety of more or less organised armed groupings. These ranged from relatively well to poorly organised self-defence units (SDUs), self-protection units (SPUs) and vigilante groupings, under varying degrees of control by the ANC, the IFP, the state or other political formations. Some units were well trained and ostensibly under military control, although at times they operated on their own initiative. Others were little more than bands of politically motivated youth, acting on example and exhortation. Many SDUs, for example, were ‘acknowledged’ by MK, and even given some weapons and training, but were far from its chain of command.

106 The Commission had great difficulty in dealing with these cases. In the end, given the lack of information on the degree of control and the nature of the combat situation, it decided to employ the narrow definition of combatants. This meant that, in general, cases involving members of the above organisations were treated in the same way as non-combatants (as described above). However, where clear evidence emerged, on a case-by-case basis, of direct military engagement by members of these groupings, they were regarded as combatants.

107 A second difficulty arose around the question of whether members of the SAP and of other armed forces (such as the SADF and homeland defence forces) were in or out of combat when called upon to perform policing duties in the townships (the word used to describe residential areas for people classified as black). Further, should those who killed or injured police in the townships be regarded as in or out of combat? In general, the Commission did not treat these as combat situations, although it remained open to treating specific cases as combat situations where there was sufficient evidence to do so.

108 Thus, the Commission made a conscious decision to err on the side of inclusivity – finding that most killings and serious injuries were gross violations of human rights rather than the result of the legitimate use of force. Where the evidence of a combat situation was clear, however, the traditional laws of war were applied.