TRC Final Report

Volume 1

Chapter 4

Subsection 8

■ JUST ENDS, JUST MEANS AND CRIMES AGAINST HUMANITY

64 In making judgements in respect of the above requirements, the Commission was guided by criteria derived from just war theory (which was referred to in several submissions made to the Commission by political parties), international human rights principles and the democratic values inherent in the South African Constitution. By using these criteria, the Commission was able to take clear positions on the evils of apartheid, while also evaluating the actions of those who opposed it.

65 The application of some of the principles and criteria of just war theory have proved difficult and controversial, especially when dealing with unconventional wars, that is, wars of national liberation, civil wars and guerrilla wars within states. The distinction between means and cause is a dimension of just war theory that cannot be ignored. Often this distinction is made in terms of justice in war (jus in bello) and justice of war (jus ad bellum).

66 Justice of war evaluates the justifiability of the decision to go to war. The two basic criteria guiding this evaluation are: first, the justness of the cause (the underlying principles for which a group is fighting), and second, whether the decision to take up arms was a matter of last resort.

67 The doctrine of justice in war states that there are limits to how much force may be used in a particular context and places restrictions on who or what may be targeted. Two principles dominate this body of law:

a the use of force must be reasonably tailored to a legitimate military end;

b certain individuals are entitled to specific protections, making a fundamental distinction between combatants and non-combatants. Thus an enemy soldier who is armed and ready for combat may be harmed and even killed, but a civilian or a sick, wounded or captured soldier may not be harmed.

68 What implications did this have for the Commission? Can the acts of political violence by those who struggled against apartheid, on the one hand, and by the agents and defenders of the apartheid state, on the other, be morally equated?

Justice of war

69 As far as the question of the justice of the South African conflicts was concerned, the Commission was faced with competing claims of just causes from various parties to the conflicts of the past. In seeking to address these, the Commission took into consideration factors such as the Cold War and the international and regional contexts. These were raised by the NP and the Freedom Front (FF) in many amnesty applications and in the submission by Mr Craig Williamson. The Commission accepted that many people had clearly believed that they were fighting against Communism and anarchy and not, in the first place, for apartheid.¹³

70 At the same time, these acts of war were also ultimately undertaken in defence of the ruling white minority and the apartheid state. In international law, this system of enforced racial separation and discrimination was itself found to be a crime against humanity (see the appendix to this chapter). Thus, those who fought against the system of apartheid were clearly fighting for a just cause, and those who sought to uphold and sustain apartheid cannot be morally equated with those who sought to remove and oppose it.

71 The application of ‘the last resort’ criterion in just war theory obviously yields a less straightforward answer. Submissions to the Commission by the NP, FF and the IFP contested the necessity for the resort to armed resistance by the liberation movements. This matter will always be the subject of debate. However, any analysis of human rights violations which occurred during the conflicts of the past, and any attempt to prevent a recurrence of such violations, must take cognisance of the fact that, at the heart of the conflict, stood an illegal, oppressive and inhuman system imposed on the majority of South Africans without their consent. There had, over many decades, been numerous attempts by those opposed to this system to bring about change by non-violent means, before resorting to armed resistance.

72 The immorality and illegality of apartheid was acknowledged by most of the political party submissions and thus does not reflect the bias of any one perspective. Indeed, in his appearance before the Commission in May 1997, former State President de Klerk himself described apartheid as a system that caused great suffering to millions of people. This recognition was reflected in numerous other important submissions to the Commission, including:

a five of the most senior judges, on behalf of the judiciary past and present, declared in a submission to the Commission that apartheid was, in itself, a gross violation of human rights;

b four former NP cabinet ministers, testifying in the Commission’s hearing on the State Security Council, acknowledged that apartheid had no moral basis;

c the Western Cape regional synod of the Dutch Reformed Church, in conformity with the position adopted by most major religious institutions, declared that apartheid as a system of enforced racial discrimination was wrong and sinful, not only in its effects and operations, but also in its fundamental nature.

73 The recognition of apartheid as an oppressive and inhuman system of social engineering is a crucial point of departure for the promotion and protection of human rights and the advancement of reconciliation in South Africa. It is thus a great sign of hope to the Commission and to the future of the South African nation that, during the 1980s, the early 1990s and during the life of the Commission, increasing numbers of those who formulated and implemented apartheid have recognised not only the political unsustainability but also the immorality of this system.

Justice in war

74 The Commission’s confirmation of the fact that the apartheid system was a crime against humanity does not mean that all acts carried out in order to destroy apartheid were necessarily legal, moral and acceptable. The Commission concurred with the international consensus that those who were fighting for a just cause were under an obligation to employ just means in the conduct of this fight.

75 As far as justice in war is concerned, the framework within which the Commission made its findings was in accordance with international law and the views and findings of international organisations and judicial bodies. The strict prohibitions against torture and abduction and the grave wrong of killing and injuring defenceless people, civilians and soldiers ‘out of combat’ required the Commission to conclude that not all acts in war could be regarded as morally or legally legitimate, even where the cause was just.

76 It is for this reason that the Commission considered the concept of crimes against humanity at both a systemic level and at the level of specific acts. Apartheid as a system was a crime against humanity, but it was also possible for acts carried out by any of the parties to the conflicts of the past to be classified as human rights violations.