TRC Final Report

Volume 6

Section 5

Chapter 3

Subsection 3

IUS IN BELLO AND IUS AD BELLUM

17. The ANC also criticised the Commission for failing to deal adequately with the fact that the apartheid state acted in breach of the Geneva Conventions and the Additional Protocols. According to this view, the actions that the state considered to be legitimate were war crimes. For this reason it is important to elucidate the distinction between a ‘just war’ and ‘just means’.

18. In its five-volume Final Report, the Commission stated the following:

The application of some of the principles and criteria of just war theory have proved difficult and controversial, especially when dealing with unconventional wars, that is wars of national liberation, civil wars and guerrilla wars within states. The distinction between means and cause is a dimension of just war theory that cannot be ignored. Often this distinction is made in terms of justice in war (ius in bello) and justice of war (ius ad bellum).

19. In dealing with the doctrine of justice in war, the Commission stated:

There are limits to how much force may be used in a particular context and restrictions on who or what may be targeted. Two principles dominate this body of law:

The use of force must be reasonably tailored to a legitimate military end; Certain individuals are entitled to specific protection, making a fundamental distinction between combatants and non-combatants. Thus even an enemy soldier who is armed and ready for combat may be harmed and even killed, but a civilian or a sick, wounded or captured soldiers may not be harmed.

20. The Report stated further:

The Commission’s confirmation that the apartheid system was a crime against humanity does not mean that all acts carried out in order to destroy apartheid was necessarily legal, moral and acceptable. The Commission with the international consensus that those who were fighting for a just cause were under an obligation to employ just means in the conduct of this fight.

As far as justice in war is concerned, the framework within which the Commission made its findings was in accordance with international law and the views and findings of international organisations and judicial bodies. The strict prohibitions against torture and abduction and the grave breach of killing and injuring defenceless people, civilians and soldiers ‘hors de combat’ required the Commission to conclude that not all actions in war could be regarded as morally or legally legitimate, even where the cause was just.

21. Given the ANC’s own commitment to upholding the Geneva Conventions and the various principles of international humanitarian law – as well as its own Declaration in 1980 – it is difficult to understand why it wishes to pursue this argument. The Commission, however, stands by this distinction. Hans-Peter G asse r, a former Senior Legal Adviser to the ICRC has stated:

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 humani tarian law, there is no place for discriminatory treatment of victims of warfare based on the concept of ‘just war’.

22. Professor Kader Asmal, a member of the ANC National Executive and a leading expert in international law, explained the ANC’s commitment to the Geneva Conventions as follows:

The applicability of the humanitarian rules of war to conflicts between an incumbent state and a national liberation movement fighting for self-determination is clearly accepted. The Protocols to the 1977 Geneva Conventions are intended to apply to such a conflict and were subscribed to by the ANC in 1980. Although the Apartheid state did not ratify the relevant Protocol, that Protocol merely codified pre-existing contemporary law on the subject. Thus both belligerents in South Africa were under an obligation to treat the conflict as one governed by the law of war. Under Article 85, paragraph 5 of the Geneva Protocol,’ grave breaches’ of the Convention and Protocol constitute war crimes.^{6 0}

23. The report of the Motsuenyane Commission on conditions in the ANC camps in Angola spelt out the ANC’s obligations under international humanitarian law, as well as the applicability of Article 75 of Protocol I of 1977 and Common Article 3 of the Geneva Conventions on the conditions and treatment of MK prisoners in their custody. The Motsuenyane Commission also referred to the African Charter on Human and People’s Rights and the International Covenant on Civil and Political Rights. This report was accepted by the ANC and its findings were referred to the Commission.

24. Thus a just cause cannot mean that all restraint in the conduct of the war should be allowed to fall away. Although the cause of the liberation movements amounted to a just war, certain incidents that impacted on those who were hors de combat and ‘civilians’ were considered to be breaches of international law. A number of incidents involving indiscriminate bombings that led to the injury and death of civilians are regarded in law as breaches, the responsibility for which the group or movement that committed these acts must acknowledge.

25. This debate is a crucial one in modern times as the distinction between ‘ freedom fighter’ and ‘terrorist’ becomes more blurred.

26. Again, the principle that derives is that the fact that the liberation movements’ cause was just does not mean that they were not required to act justly in the conduct of that war. Thus the ius in bello cannot be separated from the ius ad bellum.

27. In essence, the effect of this distinction is to hold individuals, organisations, states and organs of the state accountable for their actions. Thus military commanders cannot evade the consequences of their orders; nor can subordinates evade punishment or accountability on the basis of having followed orders. The responsibility to act within the boundaries of international humanitarian law binds all actors, both state and non-state parties. According to Professor Kader Asmal:

Traditionally, these two branches of international law have addressed separate issues: international humanitarian law has been concerned with the treatment of combatants and non-combatants by their opponents in wartime, while international human rights law has been concerned with the relationship between states and their own national son peacetime. Yet, even in earlier times, they shared a fundamental concern: a commitment to human dignity and welfare , irrespective of the status of the individual (combatant or non-combatant) and of the circumstances under which his rights and responsibilities are to be exercised (peacetime or wartime)⁶¹ .