TRC Final Report

Volume 6

Section 5

Chapter 5

Subsection 4

SUBMISSION MADE BY THE PAC IN RESPONSE TO THE FINDINGS MADE BY THE COMMISSION

34. In terms of section 30 of its founding Act, the Commission sent the PAC a notice setting out its proposed findings on 27 August 1998. The PAC responded on 21 October 1998 through its secretary-general, Mr Ngila Muendane. The response reached the Commission’s offices after the cut-off date and was not considered or taken into account at the time of the publication of the Commission’s Final Report. In reviewing its findings, however, the Commission returned to the submission made by the PAC.

35. The first objection that the PAC raises in the submission is that the Commission labelled it a gross violator of human rights. The PAC argues that, if the Commission determined that its struggle was just, it was contradictory to find it a violator of g ross human rights. The PAC made this point again after the Commission had handed over its Final Report to President Mandela in October 1998.

36. The second issue raised by the PAC was that of ‘legal equivalence’. This echoed objections raised by the ANC that violations committed by members of the liberation movements were given legal equivalence to those perpetrated by members of the security forces.

37. Beyond this, the PAC did not respond in any detail to the Commission’s findings; nor did it make reference to the problems and reservations it had raised with the Commission while the process was underway. Instead, it affirmed the work of the Commission, despite some general reservations on the Commission’s findings on the liberation movements in general.

PAC COMMENTS DURING PARLIAMENTARY DEBATE

38. In the parliamentary debate on the Commission’s Report, held on 25 February 1999, PAC President Dr Stanley Mogoba noted that the Commission had revealed the painful truth of past apartheid atrocities but had not succeeded in bringing about reconciliation:

The TRC unavoidably opened the wounds of many families who were hurting in silence. The skeletons of this country came tumbling out of the cupboards. Some of us who had experienced the terrible side of the apartheid repression knew some of the truth, but only a fraction of the truth.

39. H o w ever, while Dr Mogoba praised the Commission for ‘the positive contribution’ it had made in ‘the manner in which it revealed the painful truth of past atrocities and shocking barbarity during apartheid’, he criticised it for condemning the liberation movements for atrocities perpetrated during the liberation struggle:

Although the context of hostilities, war and the struggle for survival is grudgingly admitted, the condemnation is nevertheless made. How we may ask, can people who were fighting and killing to uphold an oppressive and inhuman apartheid system, which was roundly condemned as a crime against humanity, be placed on the same scales of justice with the victims of that system?⁷³

40. This, indeed, was the criticism levelled at the Commission by all the liberation movements, despite the fact that they themselves had played a leading role in drafting the legislation that required the Commission to adopt an ‘even handed’ approach to the commission of gross human rights violations. The legislation did not make a distinction between the state and any other party. It required the Commission to investigate all gross human rights violations. Moreover, in making its findings, the Commission found the former apartheid state to be the major perpetrator responsible for state-sponsored violence.

41. The Commission considered that the war waged by the liberation movements was a just war and upheld the finding of the United Nations that apartheid was a crime against humanity. Thus the fight against the apartheid government was considered to be just and legitimate. Reference should be made to Additional Protocol I to the Geneva Conventions of 1949 covering armed conflicts in which people are fighting against racist or colonial regimes ,⁷⁴ which was specially created to deal with the struggles being conducted in South Africa and Israel. The conflict was therefore regarded as an international armed conflict.⁷⁵

42. The PAC sought disingenuously to blur the lines between a ‘just cause’ and ‘just means’, striving to make the point that, if the struggle it waged was just, it could not possibly be a violator. Their point of departure was that, if the cause is just, it follows that the actions performed in support of that cause must also be just. In terms of the Geneva Convention and the Protocols, the means used also have to be just.

43. Taken one step further, the PAC insisted on the view that anybody they considered to be the enemy in terms of their own policy constituted a ‘legitimate’ target. This view is contrary to the provisions of international humanitarian law, which considers the only acceptable or legitimate target to be a ‘combatant’. In addition, civilian casualties are perceived to be grave breaches of the Geneva Conventions and the party responsible for the killing is considered to have committed a gross violation of human rights.

44. The PAC also makes the point that the majority of people who die in war are innocent and that that is the very nature of war. This assertion, of course, evades the fundamental purpose of international humanitarian law which is to ensure that innocent people such as civilians are not killed, maimed and tortured and that they, particularly, are protected from the impact and ravages of war.

Application of the Geneva Conventions

45. The Geneva Conventions and the Additional Protocols set out comprehensively the situations in which grave breaches are said to be committed.^{7 6} The Geneva Conventions stipulate that, even if one of the parties in a conflict is not a party to the Conventions, the other party will remain bound. Article 1(2) of Protocol I specifically states that, in cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, f rom the principles of humanity and from dictates of public conscience. R e f e rence was made in the chapter dealing with the ANC^{7 7} to the fact that this P rotocol was intended to deal with those situations where ‘peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination as enshrined in the Charter of the United Nations and the Declaration of Principles of International law concerning Friendly Relations and Co-operation among States inaccordance with the Charter of the United Nations’. These Conventions are designed to limit the brutality of war and the loss of civilian life and, in particular, to hold accountable those who wage war in an unacceptable fashion.

46. Common Article 3 defines what kinds of acts constitute violations. There are a total of four acts that, if committed in respect of ‘persons taking no active part in the hostilities, including members of the armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause’ constitute grave breaches. They include the following:

a violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

b taking of hostages;

c outrages upon personal dignity, in particular humiliating and degrading treatment, and

d the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples.

47. Given the provision of Common Article 3, it can be seen that this argument of the PAC is disingenuous and cannot be taken seriously. Whilst it is true that innocent people lose their lives, it is by no means acceptable that they should do so.