TRC Final Report

Volume 6

Section 5

Chapter 3

Subsection 2

INTERNATIONAL HUMANITARIAN LAW

9. The Geneva Conventions were adopted in 1949 and South Africa acceded to them in 1952. In 1977, additional Protocols I and II were adopted. In 1980, the ANC deposited a declaration with the President of the International Committee of the Red Cross (ICRC) committing the ANC to international humanitarian law.⁵⁸

10. The principles of international humanitarian law that apply to the situation in South Africa are set out in Chapter One of this section. The chapter also deals with the ANC’s declaration that it would govern the conduct of its struggle in accordance with international humanitarian law.

Moral equivalence

11. One of the criticisms the ANC levelled at the Commission was that of ‘moral equivalence’. The ANC claimed that the Commission equated the actions of those who fought a just cause against apartheid with those who fought in defence of an unjust cause.

12. The Commission’s position has always been⁵⁹ that it was obliged by statute to deal even-handedly with all victims. Its actions in this respect were guided, amongst other things, by the principle that victims should be treated equally, without discrimination of any kind. Despite this, however, the Commission did not suspend moral judgment and drew a distinction between the actions of the state and those of the liberation movements.

13. When dealing with the question of even-handedness and moral equivalence (whether making its findings against the state, the liberation movements or other parties), the Commission relied on internationally accepted human rights principles. In order to arrive at a definition of a gross human rights violation, the Commission relied on the definition contained in the Act and, in making its assessment, took into account the political context and the circumstances within which the violation had taken place.

14. This did not, however, mean that the Commission treated the conflict as a conflict between equal parties. The Commission recognised that the might of the state, with all its power and legitimacy (however ill-conferred) was in a far stronger position than were the liberation movements.

15. The Commission also never characterised the war that the former state waged against its own people as either morally or legally justified.

16. The Commission also took care not to use apartheid definitions of legal conduct.