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South Africa's Truth and Reconciliation Process and International Humanitarian Law1

Published online by Cambridge University Press:  17 February 2009

John Dugard
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Extract

Since its establishment in 1995, the South African Truth and Reconciliation Commission has captured the attention of an international community preoccupied with the problem of dealing with crimes of the past in divided societies. While the creation of a permanent international criminal court to punish those guilty of atrocities constituting international crimes has been the first priority, the international community has, albeit grudgingly, accepted that there may be circumstances in which amnesty and reconciliation hold out more hope for troubled societies than punishment. This realisation has led to the search for an acceptable alternative to punishment that does not result in absolute amnesty for those guilty of gross human rights abuses. The South African model, of conditional amnesty accompanied by the uncovering of the past, appears to offer such an alternative. This factor, together with the relief over the fact that apartheid has at last been laid to rest, accounts for the interest shown in the South African experience.

The present note will not attempt to describe and analyse the South African precedent in detail. Instead it will provide an overview of the history, establishment and work of the South African Truth and Reconciliation Commission (TRC); examine the significance of the Report of the TRC for international humanitarian law; and consider the status of amnesty under contemporary international law in the context of the South African experience.

Type
Current Developments
Information
Yearbook of International Humanitarian Law , Volume 2 , December 1999 , pp. 254 - 263
Copyright
Copyright © T.M.C. Asser Instituut and the Authors 1999

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References

3. The liberation movements were spearheaded by the African National Congress and the Pan-Africanist Congress.

4. Act 200 of 1993.

5. Act 108 of 1996.

6. Act 34 of 1995.

7. Sections 10(1), 19(3)(b)(iii)of Act 34 of 1995.

8. Section 20 of Act 34 of 1995.

9. This meant, in the words of Tutu, Desmond, that ‘the Commission was restricted to examining only a fraction of the totality of human rights violations that emanated from the policy of apartheid’. TRC Report, infra n. 11, Vol. 1, p. 29Google Scholar.

10. Many of the lawfully prescribed practices of apartheid relating to systematic discrimination and persecution on racial grounds, but not involving physical violence to the person, might be categorized as crimes against humanity under customary international law or as crimes of apartheid under the 1973 Convention on the Suppression and Punishment of the Crime of Apartheid.

11. Truth and Reconciliation Commission Report, 5 volumes (Cape Town, Truth and Reconciliation Commission 1998)Google Scholar.

12 22 IRRC (1981) p. 20Google Scholar.

13. TCR Report, supra n. 11, Vol. 2, pp. 42–43.

14. Unsuccessful attempts were made to persuade South African and Namibian courts to accord special status to captured members of national liberation movements on the ground that Art. 1(4) of Additional Protocol I had become part of customary international law or was believed to be a customary rule by the combatants themselves. See Dugard, J., ‘The Treatment of Rebels in Conflicts of a Disputed Character. The Anglo-Boer War and the ‘ANC-Boer War’ Compared’, in Delissen, A. and Tanja, G.J., eds, Humanitarian Law of Armed Conflict. Challenges Ahead. Essays in Honour of Frits Kalshoven (Dordrecht, Martinus Nijhoff Publishers 1991) p. 447Google Scholar.

15 2 ILC Yearbook (1950) p. 374Google Scholar.

16 TRC Report, supra n. 11, Vol. 1, p. 76.

17 Ibid., Vol. l, p. 75.

18 Ibid., Vol. 2, pp. 52–55.

19 Ibid., Vol. 2, p. 53.

20 Ibid., Vol. 2, pp. 60–61.

21 In 1985 Captain Wynand du Toit was captured in the course of a commando operation in Cabinda (Ibid. p. 6), while Cuban soldiers were taken prisoners of war in Southern Angola.

22 Ibid., Vol. 2, pp. 67–68.

23 Ibid., Vol. 2, p. 84.

24 Ibid., Vol. 2, p. 154.

25 Ibid., Vol. 5, p. 222.

26 Ibid., Vol.1, p. 102.

27 Ibid., Vol. 1, pp. 9–102. Cf., the ‘Minority Position’ submitted by Commissioner Wynand Malan, Ibid., Vol. 5, pp. 448–450.

28 Ibid., Vol. 1, pp. 66–68; Vol. 2, p. 325.

29 Ibid., Vol. 2, p. 69.

30 Ibid.

31 Ibid.

32 Ibid., Vol. 5, p. 211.

33 Ibid., Vol. 2, p. 325.

34 Ibid., Vol. 5, p. 348.

35 See Orentlicher, D., ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’, 100 Yale Law Journal (1991) p. 2537CrossRefGoogle Scholar. In Azapo v. President of the Republic of South Africa 1996 (4) South African Law Reports 562 (CC), the South African Constitutional Court found that international law imposes no such duty to prosecute. See further J. Dugard, ‘Is the Truth and Reconciliation Process compatible with International Law? An Unanswered Question’, 13 South African Journal on Human Rights (1997) p. 258; Dugard, J., ‘Reconciliation and Justice: the South African Experience’, 8 Transnational Law & Contemporary Problems (1998) p. 277Google Scholar.

36 TRC Report, supra n. 11, Vol. 5, p. 349.

37 Ibid., Vol. 5, p. 309.