TRC Final Report

Volume 6

Section 5

Chapter 2

Subsection 8

Responsibility for complicity

103. In dealing with the atrocities of the past, the search for justice and accountability has meant that it is important to go beyond those who commit the crimes – the trigger-pullers – and to identify those who are complicit in the violations because they planned and conceptualised them.

104. In international law this concept has been formulated in various legal instruments. At Nuremberg, Council Control Law No. 10 singled out accessories, consenting participants, those connected with plans to commit crimes, and members of organisations associated with the crime. Likewise, Article 111 of the Genocide Convention criminalised conspiracy, incitement and complicity in the commission of genocide. The International Law Commission included complicity in its elaboration of the Nure m berg principles. Article 7 (1) of the ICTY statute provides that:

A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.

105. In a further legal development, the Rome Statute of the International Criminal Court criminalises a range of associated acts, such as ordering, soliciting, inducing, aiding, abetting or assisting in the commission of the crime in a detailed scheme that conditions guilt on specific acts or mental state.

106. The tribunals have interpreted each of the elements of Article 7(1). In terms of the Blaskic case^{4 5}, an ‘order’ does not need to be in writing or in any particular form. It can be explicit or implicit and can be proved through leading evidence of a circumstantial nature. Nor does it require that the superior give the order directly to the perpetrator. In the Akayesu⁴⁶ case, the court held that it was the mens rea of the superior that was important, not the animus of the perpetrator – that is, the subordinate who executes the order. If one applies this principle to the occasion when Minister le Grange instructed General Petrus Johannes Coetzee to assemble a team to strike at the offices of the ANC in London in 1982, it becomes clear that he took part in the crime. Minister le Grange is deceased but, had be been alive, he would no doubt have needed to apply for amnesty for this act to escape potential prosecution. In this instance, General Coetzee applied for amnesty for his role in the London bombing.

107. General Mike Geldenhuys, the then Commissioner of Police, expressed his opposition to the fact that serving policemen were to be used. He appears thereafter to have played no role beyond remaining silent. Minister le Grange instructed General Coetzee that, notwithstanding his objections: ‘the government had decided to that the operation would need to go ahead’. Commissioner Geldenhuys could in all probability be held responsible for his omission in that he knew of the intention to commit a crime in another country and did nothing about it.

108. In the Tadic⁴⁷ case, the trial chamber of the ICTY elaborated on the meaning of ‘accomplice’ liability and concluded that the accomplice is guilty if ‘his participation directly and substantially affected the commission of that offence through supporting the actual commission before, during, or after the incident’ and that he ‘had knowledge of the underlying act’. This test was not challenged and has been adopted by other chambers of the ICTY. In the Akayesu case, the ICTR defined ‘planning’ to mean ‘one or several persons contemplate designing the commission of a crime at both the preparatory and execution phases’.

109. ‘Instigating’ was defined as ‘prompting another to commit an offense with a causal connection between the instigation and the perpetration of the crime’. The ICTY held that whilst ‘a causal relationship between the instigation and the physical perpetration of the crime needs to be demonstrated (i.e. that the contribution of the accused has an effect on the commission of the crime), it is not necessary to prove that the crime would not have been perpetrated without the accused’s involvement’.

110. If one applies these principles to our situation, Minister le Grange would have been held responsible for the 1985 incident known as Operation Zero Zero. In terms of testimony before the Amnesty Committee, Le Grange authorised a plan that provided for the issue of defective hand grenades to a number of young Congress of South African Students (COSAS) activists on the East Rand. The hand grenades were to be used in operations against the state. However, the timing devices had been tampered with, which resulted in seven youths being killed and eight severely injured. In addition, a young woman who was suspected of being an informer was ‘necklaced’⁴⁸, making her one of the first necklace victims in the country. Whilst Minister le Grange might not have known that Ms Maake Skosana would be killed, there is a causal link between her death and the hand grenade incident.

1 1 1 . In 1987, the then Minister of Law and Order Adriaan Vlok [AM4399/96] authorised the destruction of Cosatu House^{4 9} in central Johannesburg on the night of 3 May 1987. A team from Vlakplaas, assisted by the Witswatersrand Security Branch and including its technical and explosives sections, undertook the operation. Although nobody was killed, there were approximately twenty people in the building at the time. The building itself was extensively damaged. Minister Vlok could technically have been charged for attempted murder.

112. In July 1988, Minister Vlok authorised the placing of dummy explosives in several cinemas around South Africa to provide a pretext for the seizure and banning of the film, C ry Freedom, which details the death of detainee Steve Biko at the hands of the Port Elizabeth Security Branch. This action followed a number of unsuccessful attempts to exert pressure on the Publications Contro l Board to ban the film. In giving reasons for his actions before the Commission, Minister Vlok expressed the view that he had tried the legal route and failed,

and had therefore resorted to illegality as he had judged ‘that this film would have been a risk as it was inciteful’.

113. In August 1988, Minister Vlok was allegedly ord e red by then State President PW Botha to render Khotso House ‘unusable’, but to do so without loss of life. Khotso House was the headquarters of the South African Council of Churches , considered to be an opponent of the former state. Numerous anti-apartheid organisations, including the United Democratic Front, also had offices in the building. This case provides an interesting study as, in his evidence before the Amnesty Committee, Minister Vlok testified that, although he had not been given specific instructions to bomb Khotso House, he could not think of a legal way to carry out the State President’s injunction. He also testified that, since P resident Botha had said that ‘it should involve no loss of life’, he was led to believe that that Mr Botha had been suggesting unlawful means. This operation, which was also conducted by Vlakplaas with assistance from the Witwatersrand security Branch and the explosives section at security Branch Headquarters, took place on the night of 31 August 1988. Given the legal principles enunciated above, there can be little doubt that Mr PW Botha remains liable for these operations.

114. All of these operations indicate that there was direct political authorisation for these unlawful activities, which involved loss of life and/or the potential for loss of life and damage to property.

115. The pattern that was followed by successive apartheid governments was to pass to laws to legitimise their conduct. When that failed, they did not hesitate to act outside of the law and resort to criminality.

116. In the Blaskic case^{5 0}, aiding and abetting was defined as providing practical assistance, encouragement or moral support with a substantial effect on the perpetration of the crime. In terms of the Blaskic decision, an omission may constitute aiding and abetting as long as the ‘failure to act had a decisive effect on the commission of the crime’. The mens rea in such a case consists of ‘knowledge that his acts assist the commission of the crime’ and the accused must have ‘intended to provide assistance, or as a minimum, accepted that such assistance would be a possible and foreseeable consequence of his conduct’. The Blaskic judgment notes that: ‘it is sufficient that the aider and abettor knows that one of a number of crimes will be committed’.

117. In the F o cacas e^{5 1}, the trial chamber described ‘aiding and abetting’ as a contribution which may take the form of ‘practical assistance, encouragement or moral support which has a substantial effect on the perpetration of the crime. In this instance, the assistance need not have a causal connection to the act of the principal and it may involve an act or omission and take place before, during or after the commission of the crime’. In order for an individual to be held responsible for aiding and abetting, s/he must know that the acts assist in the commission of a specific crime by the principal. While the individual is not required to share the principal’s mens re a, ‘he must know of the essential elements of the crime (including the perpetrator’s mens re a ) and take the conscious decisions to act in the knowledge that he thereby supports the commission of the crime.’