TRC Final Report

Volume 6

Section 5

Chapter 1

Subsection 6

The period March 1977 to 1980

50. It is during this period that Protocol I of the Geneva Conventions was drafted specifically to cover the conflict situations in South Africa and Israel.

51. It is important to note that Protocol I was intended to supplement the existing Geneva Conventions and to ensure that national liberation movements were protected in the conflicts that were taking place.

52. In this regard, Article 1(4) of Protocol I sought to confer prisoner of war status on national liberation movement combatants involved in the conflicts in South Africa and Israel. The article provides that ‘armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination’ are to be treated as international armed conflicts and not as internal conflicts.

53. The effect of this was to bring the conflicts in South Africa and Israel under the ambit of the Geneva Conventions, and specifically of Protocol I.

54. As discussed above, the apartheid government did not accede to the additional protocols, particularly Protocol I. This was in the main due to the fact that it was of the view that Article 1(4) of Protocol I was intended to legitimise the struggle of the liberation movements and provide additional protection for their members.

55. As a liberation movement, the ANC did not apply to the ICRC to ratify or accede to this protocol, thus one can conclude that common Article 3 and not Protocol I continued to apply to the ANC.

The ANC and international humanitarian law: The period 1980 to 1994

56. In 1980, the ANC declared itself to be bound by the general principles of i n t e rnational humanitarian law applicable to the conduct of armed conflicts. The then ANC President Oliver Tambo deposited a declaration^{1 4} with the ICRC declaring the ANC bound by the Geneva Conventions and Protocol I. In fact, the declaration ought to have been deposited with the Swiss Government; but it is the intention of the party making the declaration that is important. By submitting the declaration, the ANC intended to hold itself bound by the Geneva Conventions and Protocol I.

57. As a result of this declaration, the ANC bound itself to apply Protocol I and the Geneva Conventions. In terms of Article 96(3) of Protocol I, the protocol and the Geneva Conventions came into effect immediately in respect of the conflict, despite the fact that the apartheid state had not acceded to the additional protocol.

58. The importance of the declaration is that the ANC became bound to uphold the same obligations and burdens as other parties to the Conventions and Protocols. It also enjoyed the same rights and benefits. The preamble to Protocol I provides that the provisions of the Geneva Conventions and Protocol I:

must be fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction, based on the nature or origin of the armed conflict or on causes espoused by or attributed to the Parties to the conflict.

59. As discussed above, while the ANC had bound itself unilaterally by way of the declaration to the provisions of Protocol I, the apartheid government did not consider itself so bound. It treated members of the liberation movements as criminals rather than as prisoners of war. The ANC regularly sought to challenge the jurisdiction of the courts on the basis that they were entitled to prisoner- o f war status and invoked the protection of these treaties in an attempt to commute the death sentences of numerous political prisoners. In this they were unsuccessful. Professor John Dugard commented in a book that he wrote on the status of an ANC prisoner of war:^{1 5}

The issue that most starkly illustrates the conflict between perceptions of international law in South Africa is the dispute over the status of captured ANC combatants. From the perspective of most Whites, ANC combatants cannot be accorded prisoner-of-war status as this would confer legitimacy on the ANC and condone the acts of its members. On the other hand, many Blacks view them as ‘ freedom fighters’ engaged in a just struggle entitled to be treated as POW’s and not ordinary criminals.

Furthermore, the General Assembly has recognized the legitimacy of the struggle of the national liberation movements and demanded that the ANC combatants be treated as prisoners-of-war in accordance with the provisions of the Geneva Conventions of 1949 to include ‘armed conflicts in which people are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self determination’.