TRC Final Report

Volume 6

Section 5

Chapter 1

Subsection 5

INTERNATIONAL HUMANITARIAN LAW

The Geneva Conventions

37. The Geneva Conventions were adopted in 1949 and additional Protocols I and II in 1977. The Conventions are considered to be binding in international law. Virtually every government in the world has accepted their tenets by ratifying them. However, even where states have not ratified the treaty, they have the force of ‘customary international law’ – that is, they bind governments irrespective of whether those governments have formally ratified the treaty accepting their obligations. The apartheid state acceded to the Geneva Conventions in 1952. It did not, however, ratify or accept the additional protocols, and sought to argue that it could not be bound by their provisions. However, because the international community does not regard ratification as a criterion for holding a state to be bound, it is generally accepted that, even though the previous government did not ratify these conventions, it was formally bound by the principles enunciated by these bodies during the relevant period, as they are expressions of customary international law on state responsibility for the commission of gross human rights violations.

38. In the case of the ANC, President Oliver Tambo signed a declaration at the headquarters of the International Committee of the Red Cross, Geneva, on 28 November 1980, committing the ANC to be bound by bound by the Geneva Conventions and Protocol I.¹²

Applicability of the Geneva Conventions to the South African conflict

39. The Commission’s mandate encompassed the period March 1960 to 10 May 1994, the date of President Mandela’s inauguration. Given that Protocols I and II w e re adopted in 1977, it is appropriate to consider what law was applicable to the conflict raging in South Africa. Of particular note are those sections of the Protocol dealing with grave breaches.

40. The Geneva Conventions and Protocol I draw a distinction between acts that constitute a ‘grave breach’ and acts that constitute a ‘regular breach’.^{1 3}

41. These definitions become important when dealing with those acts or means used during conflict which the Commission found to constitute gross human rights violations. Furthermore, the provisions of the relevant Conventions and Protocol I become particularly important when dealing with the bombing incidents (Khotso House, the Magoo and Why Not Bars, the London ANC office and so on).

The period March 1960 to 1977

42. During the period March 1960 to 1977, the principal treaties that applied to the conflict were the Geneva Conventions, and in particular Common Article 3. Protocols I and II had not yet been drafted.

43. Common Article 2 of the Geneva Conventions states explicitly that, with the exception of Common Article 3 and the Martens Clause, the Conventions exclusively address armed conflicts between states.

44. Whilst on the face of it this may be interpreted to mean that the Geneva Conventions had no application during that period, this is not the case, as a number of bodies within the UN passed resolutions relating to the armed conflict in South Africa. The resolutions covered subjects ranging from apartheid to colonialism and the right to self-determination. In this regard, Resolution 31029(XXXVIII) of the UN General Assembly adopted in 1973 provided as follows:

The armed conflict involving the struggle of people against colonial and alien domination and racist regimes are to be regarded as international armed conflicts in the sense of the 1949 Geneva Conventions and the legal status envisaged to apply to the combatants in the 1949 Geneva Conventions and other internation a l instruments are to apply to persons engaged in armed struggle against colonial and alien domination and racist regimes.

45. It can, therefore, be argued that the conflict in South Africa was regarded not as an internal conflict but as an international armed conflict.

46. One should also have regard to the provisions of Common Article 3, which expressly provide that this Article applies ‘in the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties’. Given that South Africa had acceded to the Geneva Conventions in 1952 and has remained a party ever since, there can be no doubt that it was bound by these provisions.

47. The ANC at this time was a non-state actor and lacked the authority or legal capacity to ratify or accede to the Geneva Conventions. However, the ICRC commentary to Common Article 3 makes it clear that non-state parties to non-international armed conflicts become bound to apply the provisions of Common Article 3 upon ratification or accession by the state party to the conflict. Moreover, the ANC itself, in terms of public statements made during this period, considere d itself bound by the core principles enshrined in international humanitarian law. The provisions of Common Article 3, there fore, applied to the military and political activities of the ANC during this period.

48. Violations in terms of Common Article 3 fall under the following four sections:

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 that are recognised as indispensable by civilised peoples.

49 . These provisions apply to ‘persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds detention, or any other cause’.