Article 'Just war' and 'Just means': Was the TRC wrong about the ANC? Janet Cherry Introduction When the report of the South African Truth and Reconciliation Commission was released in October 1998, nobody liked it. To be precise, none of the main protagonists in the South African conflict liked the findings it made about them. Superficially, at least, this seemed a good sign for of course, no perpetrators of human rights violations like to be found publicly to be violators of human rights. The fact that the TRC made such findings against all parties to the conflict made it seem as if at the very least, the TRC had been even-handed in its judgements. TRC staff could be heard muttering words to the effect that 'if all sides criticise us, then we must have done something right'. However, it soon became clear that there were negative implications for the non-acceptance of the TRC's findings. In the special sitting of both houses of parliament to debate the TRC report, held on 25 February last year, almost all of the parties in government castigated the report. In the course of a highly emotional and at times irrational debate, one IFP member, MA Mncwango, went so far as to say it would be 'consigned to the dustbin of history'. The most serious statement, however, was made in the introductory speech by then Deputy President Thabo Mbeki, who complained that the ANC had not been able to meet with the TRC to discuss its findings against the ANC. Mbeki then made the following statement: What we had sought to discuss with the TRC pertained to such obviously important matters as the definition of the concept of gross violations of human rights in the context of a war situation and other issues relating to war and peace and the humane conduct of warfare. One of the central matters at issue was, and remains, the erroneous determination of various actions of our liberation movement as gross violations of human rights, including the general implication that any TRANSFORMATION 42 (2000) ISSN 0258-7696 Janet Cherry and all military activity which results in the loss of civilian lives constitutes a gross violation of human rights... Indeed, it could also be said that the erroneous logic followed by the TRC, which was contrary even to the Geneva Conventions and Protocols governing the conduct of warfare, would result in the characterisation of all irregular wars of liberation as tantamount to a gross violation of human rights. We cannot accept such a conclusion.... (Hansard February 5 - March 26, 1999) These criticisms, which amount to a refusal to accept the TRC's findings, will surely impact upon the acceptance and stature of the TRC report among the majority of South Africans. After all, most South Africans voted for the ANC and supported its liberation struggle. If the ANC dismisses the TRC as being in some fundamental way wrong, this could mean that the TRC 'project' is in jeopardy. What implications does this have for reconciliation, for the creation of consensus about history, and for future respect for human rights by both the government and the citizens of South Africa? I take the parliamentary debate, which took place some six months after the release of the TRC's report, as a more significant indicator of the ANC's response to the TRC than its initial reaction on the eve of the release of the Report in October 1998. The events surrounding the ANC's application to the High Court 'for an interdict to stop (the Commission) from publishing any part of the report that implicated them in human rights violations until (the Commission) had considered their submissions' (Tutu 1999:211-2) are complex, and involved errors of judgement on both sides. On the Commission's side, the wording of the 'findings notice' sent to the ANC was hastily drafted, inaccurate in places and possibly perceived as insulting or crude in that it did not give the context in which the findings were made. The ANC, for its part, failed to meet the given deadlines in responding to the findings, which all 'perpetrators' had served on them. Some feel that the ANC's response was a 'kneejerk' one, and that it shot itself in the foot by reacting so strongly. The surprise felt by the TRC, including Archbishop Tutu, to the ANC's legal challenge was real. As Tutu noted, 'I must say that some of us were taken aback, since we had believed that the notice would be a mere formality with the ANC. The contemplated finding had been based on the ANC's own very substantial, full and frank submissions ...' (Tutu 1999:208). While the anger of the ANC leadership at the TRC's 'findings notice' may be understood in this context, it is harder to understand the statements 10 Was the TRC wrong about the ANC? made at the parliamentary debate, after the dust had settled and after the ANC had had time to peruse and discuss the TRC's report thoroughly and in its entirety. Those who participated in the parliamentary debate took care to make it clear that they saw the report as an 'interim' document', and hoped that the 'final report' to be released after the amnesty hearings were completed, would rectify some of the 'failures' of the October 1998 version. The Speaker of the House, in concluding the debate, stated that it was not 'the occasion to accept the report or to reject it, but merely to acknowledge its importance and respond to it'. It is of course possible that when the TRC commissioners meet later this year, after the amnesty hearings have been completed, they will revise their findings in the light of information received at amnesty hearings. The findings of the amnesty committee are to be published in the form of a codicil to the report, and it is likely that this will add a substantial amount of detailed information to the existing five-volume report. Yet it is na'ive to believe that the TRC will adopt a codicil which substantially differs from the findings in the initial report, or that the public perceptions of the TRC are going to change in this last stage of the process. In fact, following the ANC's (and other parties') perceived rejection of the report, public interest in the TRC has waned. Except for those awaiting the outcome of amnesty applications, or those who still (probably in vain) anticipate some form of reparations, many South Africans - both black and white — are inclined to regard the TRC as an expensive exercise which should have been more speedily concluded. It is precisely because the implications in terms of loss for the South African polity, and the dangers of future human rights violations, are so great that it is important that the perceived failures or inaccuracies of the TRC be taken seriously. More recently, some independent or 'non-party' observers, most notably Anthea Jeffery (1999) of the South African Institute of Race Relations, have also criticised the TRC report and its findings. Some of these criticisms are substantial, and deal with questions ofthe TRC's methodology in its investigations and the making of findings. They also reflect accurately on some of the weaknesses of the TRC process. However, it is arguedbelow that the criticisms of certain of the TRC's findings in relation to the ANC and its allies (such as the UDF) are unfounded. This article, therefore, focuses specifically on the TRC's findings as regards the ANC, and examines the bases of the criticisms of these findings. It looks, on the one hand, at the ANC itself, which found that the 11 Janet Cherry TRC had been 'too hard' on it. On the other, it looks at those opponents of the ANC and critics of the TRC who found that the TRC had been 'too soft' on the ANC. What was the TRC's finding on the ANC? In its overall finding on the South African liberation movements, the TRC (1998, vol 2, ch 4:235) stated as follows: In reviewing the activities of the ANC and the PAC, the Commission endorses the position in international law that the policy of apartheid was a crime against humanity and that both the ANC and PAC were internationally recognised liberation movements conducting legitimate struggles against the former South African government and its policy of apartheid. Nonetheless, the Commission drew a distinction between a 'just war' and 'just means' and has found that, in terms of international conventions, both the ANC, its organs the NEC, the NWC, the RC, the Secretariat and its armed wing MK, and the PAC and its armed formations Poqo and APLA, committed gross violations of human rights in the course of their political activities and armed struggles, acts for which they are morally and politically accountable.1 Elsewhere in its discussion of the activities of the liberation movements, other more detailed findings were made. Three kinds of actions were found to be gross violations of human rights. These were the planting of bombs and landmines by MK where civilians were killed or injured; the killing of informers or state witnesses; and the torture and execution in exile of suspected agents or mutineers. The ANC was also found to have been responsible for killing political opponents in the post-1990 period and for 'contributing to a spiral of violence' through the creation of SDUs (Self- Defence Units) in this period. The ANC was also held to be accountable for 'creating a climate in which ... supporters believed their actions to be legitimate and carried out within the broad parameters of a "people's war" as enunciated by the ANC. The local structures of the ANC, UDF and MK were held to be responsible for the systematic killing of IFP office-bearers while the UDF was held accountable for gross violations of human rights through its failure to control its supporters in particularly the late 1980s. Finally, a set of serious violations findings, including conspiracy to murder, abduction and torture, were made against Winnie Mandela. There is a considerable amount of contextualisation and justification given in the report for reaching these findings, and the reader is encouraged to read these sections in order to understand the findings more thoroughly. It is also perhaps pertinent here to remind readers that even more severe or 12 Was the TRC wrong about the ANC? damning findings were directed at the former National Party government and the Inkatha Freedom Party. Was the TRC 'hard' on the ANC? There appear to have been a number of grounds upon which the ANC based its objection to the TRC's finding that it had been responsible for 'gross violations of human fights'. First, the ANC took great exception to what it termed the TRC's 'moral equivalence', that is, the equating of the actions of those who fought for a just cause (against apartheid) with those who fought in defence of an unjust cause (for the apartheid state). Second, the ANC claimed that the TRC had applied one set of law (South African) to the South African/apartheid state authorities, and another set of law (international) to the liberation movements. Third, the ANC argued that it should not be found to be guilty of 'gross violations' in cases where its failure to adhere to its voluntary commitments in terms of international humanitarian law had been the result of either 'policy aberrations' (the Amanzintoti shopping centre bombing) or 'accidents' where, for example, civilians had been killed or injured. Finally, in amnesty applications heard since the appearance of the TRC report in October 1998, the ANC has offered a variant on the last argument suggesting that in certain circumstances, civilian casualties should be viewed as 'acceptable collateral damage'. There are a number of complex arguments embodied in these criticisms, which relate to international human rights law and to international humanitarian law, or the laws of war, and each is examined below. Perhaps the best starting point in addressing these issues is to look at the TRC's own terms of reference, as set out in the legislation which brought the TRC into being. The language used in the TRC's enabling act, and subsequently by the TRC, was one of 'gross human rights violations'. There was extensive debate within the TRC about what precisely constituted a 'gross human rights violation', and eventually the TRC came up with a working definition which included all acts of killing, abduction, torture and severe ill- treatment which occurred within the political conflicts of the past, and within the Commission's mandate period (1960-94). Acts which did not meet these criteria were deemed 'out of mandate', despite many pleas for some - like forced land removals - to be considered gross violations. Having agreed upon this definition, the TRC concluded that it could not and should not distinguish between 'human rights violations' and 'human 13 Janet Cherry rights abuses'; or between 'acts of war' and 'acts of government'. It also concluded that it must apply the same standards and definitions to all acts which came to its attention, whoever perpetrated them and whomever they were perpetrated upon. This may not have been strictly correct in terms of international law, and did not perhaps take into account the distinction between human rights law and humanitarian law. But for the Commission it seemed the only reasonable course of action—both politically and ethically. Politically, the Commission had to be perceived as even-handed, both by the South African public, the major political players, the former state security forces, and by the international community. Ethically, too, the Commission was bound to work according to a consistent set of definitions in the interests of justice and fairness. With the TRC Act using the language of 'gross human rights violations', the TRC concluded that these were the terms in which its findings would have to be made. It therefore, quite consciously did not create different terminologies to describe the acts perpetrated by different players in the conflict. Nor did it create a system of'grading' violations as more or less 'gross', or of categorising them differently depending on the identity of the perpetrator. These issues of definition are dealt with in chapter four of volume one of the TRC report, entitled "The Mandate'. It focusses on questions of terminology, of even-handedness, of state and non-state actors, of justice in war and of crimes against humanity. In the course of this chapter, it is made palpably clear that the TRC did not adopt the 'moral equivalence' position and that it did take into account the moral distinction between actions taken to uphold an unjust system, and ones taken to destroy that system. It, for example, accepted both the international legal declaration of apartheid as 'a crime against humanity', as well as the widely-held view that the ANC's armed struggle constituted 'a just war'. But, and this is as significant, it added the critical rider that a 'just cause' could not and did not render all acts committed in pursuit of that cause as 'just'. Following on from this position, it argued that it could do no other than treat all civilians or non-combatant victims equivalently. Thus, who were killed, tortured, abducted or suffered severe ill-treatment within the context of the political conflict, and within the mandate period, could be nothing other than victims of gross human rights violations. It followed logically, therefore, that those responsible for committing such acts were the perpetrators of gross human rights violations. 14 Was the TRC wrong about the ANC? Due to the relative lack of co-operation on the part of the National Party, the obduracy of the South African Defence Farce and the intransigence of the IFP , state or IFP perpetrators could not in many instances be identified; but this was not the case as regards many of the ANC's acts. The ANC leadership, to its credit, took full responsibility for most of the actions of its soldiers. It also made available to the TRC the findings of the two commissions it set up to probe alleged abuses in its Angolan camps. Having done so, the ANC argued it was 'unfair' for the TRC to judge its actions using international law (and its own professed commitment to the Geneva Conventions) while the actions of South African security forces were accepted within the bounds of South African (apartheid) law. This is, however, not a correct analysis of the basis on which the TRC made its findings. There were, for example, many instances where individual policemen (who were part of state institutions) or the SAP as a whole were found to have committed gross violations of human rights - even in instances where they had been exonerated by the legal institutions or processes of the time. One such example is that of the Uitenhage (Langa) massacre, where the police had been legally 'let off the hook' by the Kannemeyer Commission but where the TRC found that gross human rights violations had been committed by the SAP (1998, vol 3, ch 2:87). Here an interpretation of national law and the principles of international human rights law were employed to reach this conclusion. The same procedure was followed in developing the general finding that the apartheid state had been responsible for a gross rights violation in its rior or crowd- control policy involving the 'unjustified use of deadly force...to control demonstrations' (1998, vol 5, ch 6:223). The ANC also took exception to the TRC's analysis of human rights violations committed in the course of 'irregular warfare'. It suggests in its two submissions to the TRC that as it never adopted a policy of deliberately targeting civilians, any of its acts in which civilians were killed or injured must be considered 'errors' or 'aberrations'. The implication is that the ANC cannot be found through these particular acts to have committed human rights violations. In a variant on this theme, the ANC has since the report appeared argued that even where its operatives did, in fact, command or carry out acts in which civilians were killed or injured, some of these were actually justifiable acts of irregular war. In these circumstances, it suggests that the civilian casualties were 'acceptable collateral damage'. 15 Janet Cherry The TRC had a number of difficulties with these positions. First, how was it to separate out those acts which were 'mistakes' from those which were deliberate? Second, how could any one operation be simultaneously a mistake and an attack on a justifiable military target? In light of these difficulties, the TRC stuck to its interpretation of the Act, namely, whether or not a particular act was a mistake - which could involve various problems such as faulty intelligence, infiltration, inferior equipment, and other things that occur in warfare of whatever kind, factors outlined by the ANC in their submissions - a gross violation had been perpetrated where civilians were killed or injured. This interpretation was applied to all sides. Thus, the death of Bheki Mlangeni, who was the unintended recipient of a security-police parcel bomb destined for their own dissident Dirk Coetzee, was regarded as no less of a gross human rights violation than the death of a mr Rangasamy, who was killed when an MK bomb exploded at the wrong time and in the wrong place. Though both were victims of circumstance or of tragic error, they were also both the victims of a gross human rights violation. Recent amnesty applications have substantiated the ANC's defence of the 'collateral damage' position with regard to erroneous acts. Abobbaker Ismail, MK Head of Special Operations, has testified at length at different amnesty hearings regarding some of the most controversial ANC bombings, in particular the Church Street bomb of 1983 and the Magoos Bar bomb of 1986. In regard to the latter, Ismail testified that the operation's commander Robert McBride was instructed by him to 'identify ... areas with high concentrations of enemy personnel, on duty or not'. He further stated that when McBride raised the possibility of civilian casualties, he was referred to the decision taken at the 1985 ANC policy conference at Kabwe conference where it was decided that the possibility of civilian casualties should no longer stand in the way of executing the struggle against apartheid. Once a number of possible targets frequented by off-duty security force members had been identified, Ismail said he instructed McBride to select a final target after further reconnaissance and to proceed with the operation. Questioned at the hearing as to what constituted a legitimate target, Ismail repeated that while 'it was policy that civilian casualties should be limited, they should not stand in the way of further operations' (Mail and Guardian, October 8-14, 1998). At the post-report amnesty hearings regarding the bombing of the Ellis Park rugby stadium, and the planting of anti-tank mines by MK units, the 16 Was the TRC wrong about the ANC? MK leadership has continued to justify its choice of targets. It has not argued that these were cases of cadres 'acting outside of orders' or 'breaking discipline' or' undermining policy'. Rather, it has suggested that the targets were in fact 'enemy personnel' and that it was understood that there was a 'grey area' in which civilian casualties would 'not always be able to be avoided'. This again, is the 'acceptable collateral damage' argument, namely, that in some situations, although civilians were not the primary target, it was accepted (and foreseen) that some would get 'caught in the crossfire'. This, while regrettable, was understood (by the ANC) to be 'in proportion' to the ends it was trying to achieve, The methods of modern or irregular warfare, so the argument was made, inevitably lead to some loss of civilian life. Thus Ismail, at the TRC amnesty hearings on May 6,1998 on the Church Street bomb, justified the ANC's use of bombs in the following words: During world war II, more civilians died than military people. During World War II, in order to get at the Nazi beast, the Allies went in and went on blanket bombings. In those days they couldn't target specific targets. They bombed cities. All of those are considered legitimate. Were they tried - no! They were considered victors. They were considered as people, they were considered as liberators from the Nazi beast. Ismail here is expressing some of the anger felt by MK soldiers in being found to have committed human rights violations, after they had sacrificed so much in the struggle against the apartheid regime, one which could be equated with the Nazi regime. While this anger is understandable, it does nothing to change the international legal position and could in no way influence or give cause to amend the TRC's negative findings in cases like the Church Street and Magoos bar bombings where civilians died and were harmed. • In finding that such acts constituted gross violations of human rights, the TRC was not reflecting an ignorance of international humanitarian law,-as claimed by Thabo Mbeki, but actually applying it. The ANC should have known better as it had itself made a declaration accepting the terms of Protocol 1 of the Geneva Conventions of 1977, which states unequivocally that 'parties to the conflict shall at all times distinguish between the civilian population and combatants'. In an article entitled' International humanitarian law and the protection of war victims', Hans-Peter Gasser (1998) former Senior Legal Adviser at the International Committee of the Red Cross^ states that: 17 Janet Cherry the rules of international law apply to all armed conflicts, irrespective of their origin or cause. They have to be respected in all circumstances and with regard to all persons protected by them, without any discrimination. In modern humanitarian law there is no place for discriminatory treatment of victims of warfare based on the concept of "just war". In relation to Ismail's argument about the bombing of cities in World War II, Gasser has this to say: The new Geneva Conventions of 1949 did not develop the rules of "Hague law" (which limits warfare to attacks against military objectives). In particular, they failed to cover a fundamental issue of international humanitarian law: the protection of the civilian population against direct effects ofhostilities (attacks on the civilian population, indiscriminate bombardment etc). The lessons of Coventry, Dresden, Stalingrad and Tokyo were still to be drawn. An attempt to draw these lessons for international humanitarian law was made with the adoption of Protocol 1 of 1877, to which the ANC became a signatory. Unfortunately, in its practice, it failed, as so many others have, to learn the lessons of World War II. Both human rights law and humanitarian law apply concurrently in situations of internal armed conflict. While the liberation struggle in South Africa was defined in international law as a 'War of National Liberation' (in terms of Protocol I of 1977), the peculiar circumstances of the conflict in South Africa meant that it was not strictly a conflict of an international character. It was more a non-international armed conflict or 'civil war' for which Common Article 3 of the Geneva Conventions 'lays down minimum standards of treatment in the case of armed conflicts which are not of an "international character"' (O'Shea 1998:144). In terms of obligations under humanitarian law, liberation movements are only legally bound by its conventions arid principles if they lodge a declaration with the Swiss Federal Council. Technically, the ANC did not do so. Nonetheless, the TRC took the position that the ANC considered itself as an 'insurgent party' in the South African 'civil war' to be morally and legally bound by humanitarian law. This was consequent to the fact that on November 28, 1980, at the headquarters of the International Committee of the Red Cross in Geneva ANC President OR Tambo had signed a declaration of adherance to the Geneva Conventions and Protocol 1 on behalf of the ANC and Umkhonto we Sizwe. 18 Was the TRC wrong about the ANC? This almost unprecedented action by a liberation movement was the ANC's response to a number of critical developments pertaining to the system of apartheid in the realm of international law. The first was the UN's adoption in 1973 of the International Convention for the Suppression and Punishment of Apartheid in terms of which apartheid was proclaimed a 'crime against humanity'. The second was the adoption of Protocol 1 of 1977 which recognised, inter alia, that 'practices of apartheid and other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination' constituted grave breaches of the Geneva Conventions and were identified as crimes against humanity. It also recognised the conflict in South Africa as a war of national liberation or self-determination At the signing ceremony, Tambo, expained the ANC's motives and intentions in the following terms: We in the African National Congress have taken the serious step of making a solemn declaration at the headquarters of the ICRC this afternoon because we have for nearly 70 years respected humanitarian principles in our struggle. We have always defined the enemy in terms of a system of domination and not of a people or a race.... In signing this Declaration, the African National Congress of South Africa solemnly affirms its adherence to the Geneva Conventions and to Protocol 1 of 1977. As we have done in the past, so shall we continue, consistently and unreservedly, to support, fight for and abide by the principles of international law. (ANC 1980) He then signed the following declaration: It is the conviction of the ANC of SA that international rules protecting the dignity of human beings must be upheld at all times. Therefore, and for humanitarian reasons, the ANC of S A hereby declares that, in the conduct of the struggle against apartheid and racism, and for self- determinati