TRC Final Report

Volume 1

Chapter 4

Subsection 17

Non-state perpetrators of gross human rights violations

150 There were many cases where the Commission found that the use of force by the police was excessive and thus constituted a gross violation of human rights. There were also cases where the Commission found that violence against the police constituted a gross violation of human rights: for example, attempted killings (arson attacks when police were inside their homes) and killings of off-duty police. The latter cases were, however, fewer in number than those involving the police as perpetrators - an unsurprising result given the near monopoly of force exercised by those acting on behalf of a militarily powerful state.

151 Killings and severe ill treatment of people seen as informers or collaborators, attacks on people and places seen as part of the oppressive government and conflict between different political groupings, all formed part of the picture of gross human rights violations committed with a political motive.

Naming

152 The Act required the publication of the names of those who received amnesty in the Government Gazette. These individuals had already identified themselves as perpetrators by applying for amnesty. The Commission had therefore, to resolve which of the other perpetrators identified in the course of its work should be named in accordance with its mandate - to enquire into “the identity of all persons, authorities, institutions and organisations” involved in gross human rights violations, as well as the “accountability, political or otherwise, for any such violation” (section 4(a)(iii), (v), the Act).

153 In fulfilling this part of its mandate, the Commission was again required to walk a tightrope. This time, it was faced with the tension between the public interest in the exposure of wrongdoing and the need to ensure fair treatment of individuals in what was not a court of law; between the rights of victims of gross violations of human rights to know who was responsible and the fundamentally important question of fairness to those who are accused of crimes or serious wrongdoing.

154 The risk of personal injury and hurt to those who are identified as perpetrators is inherent in any attempt to seek the truth through a public enquiry. This can be justified to some extent by:

a acknowledging the public importance of the Commission’s truth-seeking role;

b the limited outcome of these findings (the Commission is not a court with the power to punish those identified; legal rights and obligations are not finally determined by the process);

c the adoption of a procedure which is fair within the context of an investigative process. (See chapters, Legal Challenges and Methodology and Process).

155 Given the investigative nature of the Commission’s process and the limited legal impact of naming, the Commission made findings on the identity of those involved in gross violations of human rights based on the balance of probability. This required a lower burden of proof than that required by the conventional criminal justice system. It meant that, when confronted with different versions of events, the Commission had to decide which version was the more probable, reasonable or likely, after taking all the available evidence into account.

156 The kinds of evidence which guided the Commission in identifying those responsible for gross violations of human rights on the basis of the balance of probability included:

a Identification through court records, confessions, statements implicating people in police dockets, police inquests, and/or previous applications for indemnity.

b Instances where the Commission’s investigations (section 29 hearings or investigative and research work) produced a high degree of corroboration (for example, other witnesses present at the time who supported the victim's statement). An example of a ‘high’ level of corroboration would be a situation where a witness confirmed the identity of the actual person committing the gross violation of human rights; a ‘low’ level of corroboration would be where the witness confirmed the event but not the identity of the perpetrator.

c Instances where names consistently recurred in the statements of people making allegations concerning gross violations of human rights (for example, vigilante groups). Even in such cases, perpetrators would not be named without first being sent a section 30 notice advising them that the Commission intended to name them and allowing them an opportunity to respond. This procedure applied to all instances where persons were at risk of being the subject of an adverse finding.

157 In view of the Commission’s commitment to human rights, it approached the issue of naming perpetrators in a number of different ways:

a No naming occurred where the identities of individuals and institutions involved were unclear.

b In many cases, where the Commission had insufficient information to send out section 30 notices (see chapters on Legal Challenges and Methodology and Process) to persons allegedly implicated in gross violations of human rights, such alleged perpetrators were not named.

c Institutions but not individuals were named where only the institution could be identified. In addition, only the institution was named where the identities of both individuals and institutions were clear, but where it was not possible to verify or clearly determine excessive force or illegitimate claims of self defence. In these situations, it was important to protect the accused individual against potentially unfair accusations.

d Naming of both individual(s) and institution(s) occurred where sufficient evidence was available to make a finding on the balance of probability and after completion of the correct procedure. This was not a finding of (legal) guilt, but of responsibility for the commission of a gross violation of human rights.

■ CONCLUSION

158 This chapter has provided an overview of the historical and legislative origins, as well as the objectives and functions of the Commission. More importantly, it has outlined the Commission’s interpretation of its mandate. This was, in many ways, a difficult and highly contested arena, and the resultant interpretation was the result of many hours of debate and careful consideration.

159 In subsequent volumes of this report, the mandate is applied to a range of individual cases of alleged gross violations of human rights.