Equipo Nizkor - South Africa: State v. Petane.

Conradie J: The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.

Initial skirmishes between the State and the defence concerning the adequacy or otherwise of allegations in the indictment, and in particular the further particulars thereto, resulted in better particulars to the indictment being furnished. Certain amendments to the indictment were allowed without objection. Mr Donen then declared himself satisfied with the better further particulars.

When thereafter the accused was called upon to plead he refused to do so. A plea of not guilty on each count was accordingly entered in terms of s 109 of the Criminal Procedure Act 51 of 1977.

The accused's position is stated to be that this Court has no jurisdiction to try him.

I then heard argument on what was submitted to be a jurisdictional question. As the argument progressed I began to doubt whether the point which was being raised was really a jurisdictional point at all. The point in its early formulation was this. By the terms of Protocol I to the Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called 'protecting power' appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. He relied on s 106(1)(f) of the Criminal Procedure Act 51 of 1977 to establish his right to have this point determined in initio litis. Section 106 describes the kind of pleas which may be entered on behalf of an accused. The accused refused to plead, so that technically he does not come under the terms of s 106.

Articles 45(1) and (2) of Protocol I contain the following provisions:

'1. A person who takes part in hostilities and falls in the power of an adverse party shall be presumed to be a prisoner-of-war and therefore shall be protected by the Third Convention if he claims the status of prisoner-of-war, or if he appears to be entitled to such status, or if the party on which he depends claims such status on his behalf by notification to the detaining power or to the protecting power. Should any doubt arise as to whether any such person is entitled to the status of prisoner-of-war, he shall continue to have such status and, therefore, to be protected by the Third Convention and this Protocol until such time as his status has been determined by a competent tribunal.

2. If a person who has fallen into the power of an adverse party is not held as a prisoner-of-war and is to be tried by that party for an offence arising out of the hostilities, he shall have the right to assert his entitlement to prisoner-of-war status before a judicial tribunal and to have that question adjudicated. Whenever possible under the applicable procedure, this adjudication shall occur before the trial for the offence.'

It is not necessary to quote the remainder of para 2 of art 45.

If the terms of the Protocol were found to apply I would be bound by these provisions and failure to give effect thereto might amount to an irregularity. I say 'might' amount to an irregularity because the article, to my mind, clearly envisages a situation where the applicability of the Protocol is conceded and the only question before the Court is the entitlement to protection of an individual captive.

The issue raised by such a plea is, in my view, not a jurisdictional issue. A captive who raises such a defence avers that, because he fought a war as a soldier in accordance with the laws of war, he is not guilty of any crime, despite having deliberately killed or injured others or damaged their property. In R v Guiseppe and Others 1942 TPD 139, Malan J set aside the conviction of Italian prisoners-of-war on the ground that the convictions, without notice to the protecting power, had been irregular. He did not hold that the court, in that case a magistrate's court, had no jurisdiction to try the offenders. The case is not authority for the proposition that the accused's acts are not justiciable before a municipal tribunal. Indeed, art 45(1) of Protocol I envisages that the status of such a prisoner should be determined by a competent municipal tribunal.

Since the State did not object to the procedure adopted by the defendant, I need say no more about this aspect and, in particular, need not concern myself with the circumstance that the accused's objection was taken after he had refused to plead. It seems to me to have been convenient to get this issue out of the way and I was prepared to listen to argument and give judgment on that footing.

On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. The only one of these Conventions which concerns me today is the Geneva Convention Relative to the Treatment of Prisoners-of-War of 12 August 1949.

South Africa was among the nations which concluded the treaties. According to the International Review of the Red Cross (January/February 1987 No 256), 165 countries were as at 31 December 1986 parties to the Geneva Conventions. This must be very nearly all the countries in the world. It is fair to State that the terms of these Conventions enjoy universal recognition. One of these terms is, of course, that which describes their field of application. Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.

After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.

Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.

Protocol I or, as I shall sometimes refer to it, the first Protocol, in art 3 thereof declares that:

'This Protocol, which supplements the Geneva Conventions of 12 August 1949 for the protection of war victims, shall apply in the situations referred to in art 2 common to those Conventions.'

Article 2 common to all the Geneva Conventions provides, inter alia, that:

'The present Convention shall apply to all cases of declared war or any other armed conflict which may arise between two or more of the high contracting parties, even if the State of war is not recognised by one of them.'

Article 1(4) of Protocol I amplifies and extends common art 2 by providing that:

'The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against rascist regimes in the exercise of their right of self-determination as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations.'

The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. According to Both[e], Parish and S[o]lf New Rules for Victims of Armed Conflicts (1982), the debate about this article took up almost the whole of the first session.

The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. It has been criticised for having introduced political objectives into humanitarian law, thus making it very difficult for any State to concede its applicability; it has been criticised for the vagueness of its terminology. (See Andrew Borrowdale 'The Law of War in Southern Africa: The Growing Debate' XV Cilsa 1982 at 41.) So, although practically every State in the world is agreed that the principles of the Geneva Conventions should apply to conventional international armed conflicts, far fewer (as I shall show) were or are satisfied with the extension of these provisions to the new conflict characterised as 'international'.

South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an 'armed conflict' conducted by 'peoples' against a 'rascist regime' in the exercise of their 'right of self-determination'. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. Because of the form which the argument before me has taken, none of these issues which would flow from a decision on the preliminary point concerns me at present.

In Nduli and Another v Minister of Justice and Others 1978 (1) SA 893 (A), the Appellate Division accepted that customary international law was, subject to its not being in conflict with any statutory or common municipal law, directly operative in the national sphere. The Appellate Division described the attributes of a rule of customary international law which would make it applicable in South Africa. It would have to be either universally recognised or it would have to have received the assent of this country. In holding this, the Court referred to a passage in Oppenheim International Law 8th ed vol 1 at 39 which States the conditions concerning universal acceptance or State assent for recognition of a rule of customary international law as part of the law of England. Our law and English law in this respect is therefore the same.

It is not clear to me whether Rumpff CJ in giving the judgment meant to lay down any stricter requirements for the incorporation of international law usages into South African law than the requirements laid down by international law itself for the acceptance of usages by States. International law does not require universal acceptance for a usage of States to become a custom.

Margo J, in giving the judgment of the Full Transvaal Court in Inter-Science Research and Development Services (Pty) Ltd v Republica Popular de Mocambique 1980 (2) SA 111 (T), did not think that the word 'universal', despite its ordinary meaning, was really intended to mean universal. I do not think so either. In the present case, however, the distinction between universal and general recognition makes no difference. I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.

The writers on international law tell one that to establish whether a rule or alleged rule is one of customary international law, one must investigate the sources of international law which are custom, treaties, decisions of judicial or arbitral tribunals, juristic works and decisions or determinations of organs of international institutions. (See Oppenheim (op cit vol 1 at 23-33); Starke An Introduction to International Law 7th ed at 34.)

Custom is usage which is considered by States to be legally binding:

'All that theory can say is this: Whenever and as soon as a line of international conduct frequently adopted by States is considered, legally obligatory or legally right, the rule which may be abstracted from such conduct is a rule of customary international law.'

(Oppenheim (op cit vol 1 at 27).) The conduct of Stares is referred to as State practice. The view that such conduct is legally right or obligatory is called the opinio juris.

G J H van Hoof Rethinking the Sources of International Law (1983) is one of the many writers on international law who supports this two-element approach. He says at 93 that it

'buttresses the practice-oriented character of international custom by demanding that the formulation of the content of the rule in stage one takes place through usus: customary law is built upon repetition. Without the repetition of similar conduct in similar situations there can be no custom, and without custom there can be no customary law. It is therefore a reminder of the fact, sometimes overlooked, that, although opinio juris turns a rule into a rule of international law, it is the usus which makes it a rule of customary law'.

(Starke (op cit at 38 et seq) is to the same effect.)

There are writers who espouse the view that State practice alone is sufficient to create a rule of customary international law, and others who believe that the opinio juris alone is sufficient. The principal writers and their theories are discussed in Van Hoof (op cit at 85 et seq).

I am prepared to accept that, as might happen in rapidly developing fields of technical or scientific endeavour, like space exploration, if all the States involved share an understanding that a particular rule should govern their conduct, such a rule may be created with little or no practice to support it. Indeed, the opportunity for putting the understanding into practice may not arise. It may be, as Van Hoof (op cit) suggests at 86, that it would be better to regard customary international law so created as not emanating from custom but from a new and different source.

I am also prepared to accept that customary international law may in this way be created very quickly, but before it will be considered by our municipal law as being incorporated into South African law the custom, whether created by usus and opinio juris or only by the latter, would at the very least have to be widely accepted.

Mr Donen says that by near-universal State practice the provisions of Protocol I have passed into customary intetnational law which, since it is part of South African law, obliges this Court to apply the provisions thereof. He argues that the State practice which has made the provisions of the first Protocol part of customary international law is the attitude of States, practically all the States of the world, expressed in frequent condemnation of the policies of this country at the United Nations. There are, to my mind, several difficulties with this proposition.

In the first place, it is doubtful whether resolutions passed by the United Nations General Assembly qualify as State practice at all. There is, says Van Hoof (op cit at 108), no unanimity on what is to be considered State practice:

'There exists quite wide-ranging disagreement in doctrine on what can properly be considered usus.'

Akehurst's detailed study on custom shows that it is far from easy to indicate in abstracto whether a certain type of act can be taken to belong to usus or not. Akehurst himself employs an extremely broad concept of usus. Almost all activities of States are counted. Illustrative in this respect is his opinion on statements by States in abstracto:

'It is impossible to study modern international law without taking account of declaratory resolutions and other statements made by States in abstracto concerning the content of international law.'

This statement as such is certainly correct. It does not follow, however, that such resolutions or declarations can be classified as usus giving rise to custom. They may constitute opinio juris which, if expressed with respect to a rule sufficiently delineated through usus, may create a customary rule of international law. To this extent Akehurst is correct in stating that

'(w)hen States declare that something is customary law it is artificial to classify such a declaration as about something other than customary law'.

But, If there is no preceding usus, such a declaration cannot give birth to a customary rule, unless, of course, the declaration itself is treated as usus at the same time. However, it takes too wide a stretching of the concept of usus to arrive at the latter conclusion. As was rightly observed, 'repeated announcements at best develop the custom or usage of making such pronouncements'.

As was already reiterated in the foregoing, it is dangerous to denaturate the practice-oriented character of customary law by making it comprise methods of Iaw-making which are not practice-based at all. This undermines the certainty and clarity which the sources of international law have to provide. The Universal Declaration on Human Rights may be taken as an example in this respect. It has been asserted that in the course of time its provisions have grown into rules of customary international law. This view is often substantiated by citing abstract statements by States supporting the Declaration or references to the Declaration in subsequent resolutions or treaties. Sometimes it is pointed out that its provisions have been incorporated in national constitutions. But what if States making statements like these or drawing up their constitutions in conformity with the Universal Declaration at the same time treat their nationals in a manner which constitutes a flagrant violation of its very provisions, for instance, by not combating large-scale disappearances, by practising torture or by imprisoning people for long periods of time without a fair trial. Even if abstract statements or formal provisions in a constitution are considered a State practice, they have at any rate to be weighed against concrete acts like the ones mentioned.

In the present author's view, the best position would seem to be that it is solely the material, concrete and/or specific acts of States which are relevant as usus. As was said, it is difficult to come up with a definition in abstracto, but the following description would seem to offer a useful handhold:

'The substance of the practice required is that States have done, or abstained from doing, certain things in the international field: eg that they have exercised diplomatic protection in certain circumstances, or recognised the rights of other States to do so; that they have refrained from bringing or permitting legal proceedings against visiting diplomats; that they have claimed certain areas of submarine territory or recognised such right claimed by other States. State practice, as the material element in the formulation of custom, is, it is worth emphasizing, material: it is composed of acts by States with regard to a particular person, ship, defined area of territory, each of which amounts to the assertion or repudiation of a claim relating to a particular apple of discord.'

It is, I believe, correct to say that the practice of condemnation of South Africa is evidence only of general dislike of its internal policies. There is nothing in the condemnation from which the content of a rule of customary international law may be derived. I fail completely to appreciate how the condemnation of South Africa, or even the labelling of apartheid as a crime against humanity, leads to the inference that Protocol I has been accepted as part of customary international law by those States uttering those condemnations. I suppose that, since ratification of Protocol I is open to every State, very little short of that could be construed as an acceptance of its provisions.

In particular, United Nations resolutions cannot be said to be evidence of State practice if they relate, not to what the resolving States take it upon themselves to do, but to what they prescribe for others. Customary international law is founded on practice, not on preaching.

Indeed, Amato The Concept of Customary International Law (Cornell University Press 1971) puts forward the view that not even claims put forward by States can be considered as State practice. The State must act.

'What is an "act" of State? In most cases a State's action is easily recognised. A State sends up an artificial satellite, tests nuclear weapons, receives ambassadors, levies customs duties, expels an alien, captures a pirate vessel, sets up a drilling rig in the continental shelf, visits and searches a neutral ship and similarly engages in thousands of acts through its citizens and agents. On the other hand, a claim is not an act. As a matter of daily practice, international law is largely concerned with conflicting international claims. But the claims themselves, although they may articulate a legal norm, cannot constitute the material component of custom, for a State has not done anything when it makes a claim; until it takes enforcement action the claim has little value as a prediction of what the State will actually do.'

MacGibbon (in Bin Cheng (ed) International Law Teaching Practice) in a chapter entitled 'Means for the Identification of International Law' and subtitled 'General Assembly Resolutions: Custom Practice and Mistaken Identity', concludes that General Assembly resolutions can neither create new customary international law, nor be evidence of State practice:

'While a very broad definition of State practice appears almost a truism to the effect that anything done by or in the name of a State is State practice, acceptance of such a proposition hardly helps to further the identification of "general practice" in the sense of that expression in art 38(1) of the Statute. And while a General Assembly resolution (although difficult to envisage as being, in itself, state practice in any meaningful sense) embodies, or rather is the result of various forms of State conduct in the General Assembly, and so reflects State practice of a kind, it is nevertheless of a rather peripheral kind and - in the context of the development of international custom - of a somewhat artificial kind.'

Nor, in the view of MacGibbon, a view of which the logic seems inescapable, can a General Assembly resolution constitute the required opinio juris to create custom:

'If the existence of the opinio juris is in question, what is sought is evidence of what the court in the North Sea Continental Shelf cases described as a general recognition that a rule of law or legal obligation is involved. To focus that search exclusively on a General Assembly resolution is bound to prove profitless because such an instrument of an essentially recommendatory character is incapable exhibiting such an attribute. Again, the issue turns on the answer to the question posed earlier: what are States voting for when they vote in favour of a resolution? And, as before, the answer can only be: they are voting for what they know to be merely a recommendation. It is axiomatic that such a vote cannot convey the sense of legal obligation essential to an expression of the opinio juris. In other words, the mere act of adopting by vote (even by a vote which is unanimous or virtually so) an instrument which is not binding cannot possibly amount to accepting its provisions as law or as binding legal obligations. The conclusions to be drawn from this central part of the paper are therefore straightforward, if a trifle square: regardless of its wording, and regardless of the size of the favourable vote it attracted, a General Assembly resolution per se is intrinsically incapable of providing (or evidencing) either of the essential elements of custom; and it is certainly incapable of simultaneously providing (or evidencing) both.'

(MacGibbon (op cit at 23).)

The same point is also well made by Thrilway International Customary Law and Codification, who writes at 58:

'The mere assertion in abstracto of the existence of a legal right or legal rule is not an act of State practice; but it may be adduced as evidence of the acceptance by the State against which it is sought to set up a claim, of the customary rule which is alleged to exist, assuming that the State asserts that it is not bound by the alleged rule. More important, such assertions can be relied on as supplementary evidence, both of State practice and of the existence of the opinio juris; but only as supplementary evidence, and not as one element to be included in the summing up of State practice for the purpose of assessing its generality.

Practice or usage consists of an accumulation of acts which are material or concrete in the sense that they are intended to have an immediate effect on the legal relationships of the State concerned; and acts which are relevant only as assertions in the abstract, such as the recognition by a representative of a State at a diplomatic conference that an alleged rule exists, are not constitutive of practice and thus of custom, but only confirmatory of it. The only apparent exception to this principle - which is not really an exception - is the act of a State in ratifying or acceding to a multilateral treaty which directly or indirectly asserts the existence, at least for the future and for the States party to the treaty, of a rule of law. Just as a series of bilateral treaties concluded over a period of time by various States, all consistently adopting the same solution to the same problem of the relationships between them, may give rise to a new rule of customary international law, so the general ratification of a treaty laying down general rules to govern the future relationships of States in a given field has a similar effect. The practice here is concrete in the sense that each State does not merely assert the desirability, or even the existence, of the rule of law in question, but by a definite and formal decision accepts the rule for the regulation of its own interests in future differences in the field covered by the treaty. For this reason it is possible, as the International Court of Justice stated in the North Sea Continental Shelf cases, for a custom to arise simply from the general (but not universal) ratification of a codifying treaty.'

To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of rascist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.

One must, as the writers which I have quoted above have emphasised, look for State practice at what States have done on the ground in the harsh climate of a tempestuous world, and not at what their representatives profess in the ideologically overheated environment of the United Nations where indignation appears frequently to be a surrogate for action.

Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.

Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. Van Hoof (op cit) writes at 109:

'Most writers agree that treaties are to be considered State practice which may generate customary rules of international law. They may find support in the ICJ's statement in the North Sea Continental Shelf case, holding that:

"There is no doubt that this process is a perfectly possible one and does from time to time occur. It constitutes indeed one of the recognised methods by which new rules of customary international law may be formed "

It is true that treaties may be considered usus, but a number of things should be kept in mind in this respect. First, the treaty concerned must be concrete or specific enough to be able to delineate the content of a customary rule. Furthermore, and this is more important here, a treaty is, of course, binding on the State parties to it. Consequently, the question of its being capable of generating customary rule is relevant only with respect to States which are not parties to it. For a customary rule of international law to come into being for non-parties, the latter must express their opinio juris with respect to it. One should be careful, however, to draw the conclusion that they indeed have done so. In the example given by Meijers, for instance, or a (possible) rule concerning development assistance from rich to poor countries crystallizing out of bilateral and/or regional aid agreement, the opinio juris should not be lightly presumed, if the State concerned has in no way participated in the practice (for instance, by ad hoc unilateral gifts). Similarly, it would seem that in the case of a multilateral treaty which is open for ratification by all States, the opinio juris constituting "accession by way of custom" has to be unambiguous. The fact that a State is not prepared to ratify the treaty cannot be without significance in such a situation.'

I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.

Starke (op cit) remarks at 43:

'The mere fact that there are (sic) a large number of parties to a multilateral convention does not mean that its provisions are of the nature of international law binding non-parties. Generally speaking, nonparties must by their conduct distinctly evidence an intention to accept such provisions as general rules of international law. This is shown by the decision of the International Court of Justice in 1969 in the North Sea Continental Shelf cases, holding on the facts that art 6 of the Geneva Convention of 1958 on the Continental Shelf, laying down the equidistance rule for apportionment of a common continental shelf, had not subsequently accepted by the German Federal Republic - a non-party - in the necessary manifest manner.'

Suppose for the moment that Protocol I had been enthusiastically embraced by the world community, and suppose that it was good law to say that its terms bound South Africa in spite of its non-assent, what we would then have is a situation in which neither party which is engaged in what has been called the 'armed conflict' in South Africa has accepted Protocol I. I shall explain.

The one party to what the accused's counsel characterised as the 'armed conflict' is the South African State. The other party is said to be the ANC through its military wing, Umkhonto We Siswe, of which the accused has been admitted to be a member.

It was suggested by defence counsel that the ANC acceded to the Protocol, as it would have been entitled to do in terms of art 96. However, this suggestion is open to serious doubt. In his article entitled 'The Law of War in South Africa - The Growing Debate', referred to earlier, Andrew Borrowdale writes at 41:

'On 20 October 1980 Oliver Tambo, President of the African National Congress of South Africa (ANC), handed to the President of the Red Cross the following declaration signed by himself:

"The African National Congress of South Africa hereby declares that it intends to respect and be guided by the general principles of international humanitarian law applicable in armed conflicts.

Wherever practically possible, the African National Congress of South Africa will endeavour to respect the rules of the four Geneva Conventions of 12 August 1949 for the victims of armed conflicts and the 1977 additional Protocol I relating to the protection of victims of international armed conflicts."

This declaration is of great interest not only because of the obvious political implications which it holds, but also because of the fundamental questions it raises about the current State of the humanitarian law of war.'

Borrowdale comes to the conclusion, however, that the ANC declaration

'would not seem to have been made in the context of art 96(3). In the first place, it does not appear to have been addressed to, or deposited with, the depository referred to in art 96(3), viz the Swiss Federal Council. Secondly, the ANC has not undertaken to apply the rules of the Geneva Conventions of 1949 and the additional Protocol I of 1977 unconditionally, but merely to respect them wherever practically possible. But while the ANC declaration may not be a formal declaration of intent made In terms of art 96(3), it is nevertheless highly significant, not only because the mere fact that it has been made indicates the increasing relevance of the law of war in Southern Africa, but also because it probably presages the making of a declaration in terms of art 96(3).'

I need merely say in this connection that the declaration by Oliver Tambo was made in October 1980. We are now seven years thence, and no material has been placed before me from which I may conclude that the African National Congress has agreed to abide by the terms of the first Protocol.

There are, as Borrowdale points out, no doubt very good reasons why the South African Government has been reluctant to accede to Protocol I. For one thing, it could not apply its provisions without admitting that an armed conflict existed and that it was a rascist regime.

The reluctance of the ANC to accede to the first Protocol would, I imagine, arise from the embarrassment of subscribing to the principle of attacking none but military targets, and at the same time pursuing a strategy of urban terror.

It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. It enunciates as a basic rule in art 48:

'In order to ensure respect for, and protection of, the civilian population and civilian objects, the parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objectives and military objectives and accordingly shall direct their operations only against military objectives.'

The civilian population as such, as well as individual civilians, shall not be the object of attack. That is provided by art 51(2). Moreover, acts or threats of violence, the primary purpose of which is to spread terror among the civilian population, are prohibited. Indiscriminate attacks, also, are prohibited. They are defined as attacks which, inter alia, are not directed at a specific military objective, or which employ a method or means of combat which cannot be directed at a specific military objective. Article 52 then provides that civilian objects shall not be the object of attack or of reprisals. The Protocol explains in subart (2) of art 52 what are to be regarded as military objectives:

'Military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action, and whose total or partial destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage.'

In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.

Nevertheless, despite the refusal of each party to the 'conflict' to bind itself to the Protocol, Mr Donen contends that the Protocol binds them both. This proposition is far-reaching. What one has here are two parties, one of which is not a State, which are agreed on at least one thing. Neither, for its own reasons, appears to desire the protection for civilians or combatants of Protocol I. Were an international tribunal to hear a dispute between the parties about the binding force of Protocol I, it would be faced with contentions from each side that neither desired its application. I have not found a case in which a rule or alleged rule of customary international law has been applied in these circumstances. There is hardly likely to be such a case, since customary international law rests on a foundation of consensuality. For that proposition reference may be made to Oppenheim's International Law 8th ed vol 1 at 15-18, and to the work by Van Hoof, which I have already cited, at 97.

Concerning Mr Donen's argument that the provisions of Protocol I have been accepted by the international community, I make the following comments.

To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. I quote from an article by F R Ribeiro in 1980 South African Law Journal at 42:

'The Diplomatic Conference (and here the writer refers to the Diplomatic Conference on the re-affirmation and Development of International Humanitarian Law Applicable In Armed Conflicts) was well attended. 124 States were represented at the first session, 120 at the second, 107 at the third, and 109 at the fourth. Rhodesia had no representative at any of the sessions and South Africa attended the first session only.

For a number of reasons the Conference, by its resolution 3(1), decided to invite also the national liberation movements recognised by the regional intergovernmental organisations concerned to participate fully in the deliberations of the Conference and its main committees, the only stipulation being that those movements were not allowed to vote.

The "Final Act" was signed by the representatives of some 100 States and 3 national liberation movements on 10 June 1977, and was open for signature at Berne for a period of 12 months from December 1977. The Protocols provide that they shall enter into force "six months after two instruments of ratification or accession have been deposited". The Governments of Ghana (on 28 February 1978) and of Libyan Arab Jamahiriya (on 7 June 1978) deposited their letters of ratification and accession with the Swiss Federal Council. The Protocols therefore came into force on 7 December 1978. Since then eight States (Botswana, Ecuador, El Salvador, Jordan, Niger, Sweden, Tunisia and Yugoslavia) have acceded to both Protocols, while Cyprus has acceded to Protocol I only. The position as at 30 September 1979, therefore, is that 11 countries - none of them a "superpower" and none of the "big five" - have accepted Protocol I, while 10 of those have accepted Protocol II as well.'

Up to 1980, 17 States had ratified or acceded to Protocol I. That information appears from Documents on the Law of War, edited by Adam Roberts and Richard Guelff (1982) at 459-60.

In the next year or so four more States acceded to Protocol I. By February 1982 Protocol I had been ratified or acceded to by 21 States, including 7 African and 5 Western European States. (Christina Murray 'The Status of the ANC and SWAPO in International Humanitarian Law' 1983 (100) South African Law Journal 402 at 404.

According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world's major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.

This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with 'peoples' struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status or customary international.

In the article referred to earlier, Christina Murray writes:

'In neither the Sagarias nor the Mogoerane case (cases dealing with extenuating circumstances) did Professor John Dugard, who appeared as an expert witness for the defence, argue that the Protocols reflect customary international law. Rather, he suggested they were evidence of a trend in the law of which account should be taken. This is a cautious approach, but one, I think, that is well founded.'

I was referred to an article entitled 'Customary International Law and Protocol I', an analysis of some provisions by Christophe Swinarski, legal adviser to the International Committee of the Red Cross, in the publication Studies and Essays on International Humanitarian Law and Red Cross Principles in honour of Jean Pictet. The author opens his essay by remarking that:

'Because of the tardy rate with which the Protocol is being ratified -17 ratifications and 21 accessions as of January 15, 1984 - the enforcement of its provisions may largely depend upon the acknowledgement of those provisions as rules of customary international law.'

Having discussed the process by which generalised rules in treaties may evolve into customary international law, the author makes the following observation concerning Protocol I, which is the furthest point to which his argument is taken:

'The above discussion will provide normative guidelines in ascertaining some rules of customary international law in Protocol I. The fact that the Protocol has been in force only for a few years is no bar for its provisions to become rules of customary international law, provided they satisfy the criteria of State practice and opinio juris.'

That statement by the author of the position is completely unobjectionable, but it does not carry Mr Donen's argument near as far as he would I have wished.

Mr Kader Asmal is a senior lecturer in law at Trinity College, Dublin. He is also Chairman of the Irish Anti-apartheid Movement. In June 1980 he published a paper under the auspices of the United Nations Centre against Apartheid entitled The Status of Combatants of the Liberation Movement of South Africa under the Geneva Conventions of 1949 and Protocol I of 1977. Despite his generally critical attitude to the policy of the South African Government, he is not prepared to go further than to State that:

'Notwithstanding the opposition of some Western governments, there is now grudging respect for the new situation arising out of Protocol I and the evolution of new rules of customary international law.'

Andrew Borrowdale has written a stimulating article on the Protocols in XIV Cilsa 1981 entitled 'The Future of the Law of War: The Place of the Additional Protocols of 1977 in Customary International Law'. At 89 and 90 he offers the following comments:

'It is inordinately difficult to speculate as to the influence of the Protocols upon the development of customary law. While it is clear that the elements of usage and opinio juris must be proven in order to establish a practice or custom, it is far less clear what constitutes sufficient proof of such elements. The position is somewhat complicated by the fact that the Protocols have themselves not been given uniform emphasis. In explanation of their vote on art 1(4), for example, several countries seem to assert that this provision merely reflected international law. It is also apparent, however, that many others regard art 1( 4) as an innovatory development in the law of war and by no means one which formalises for the law of war a development already well-founded in international law generally. It would seem more probable that customary law has not developed nor will it develop independently of the Protocols. Rather it is likely that the Protocols would, act as a stimulus to the formation of custom and in this respect constitute an incident of usage. Further conclusive proof of the usage element as consistent and general have to be adduced and it must further be shown that such practice is accompanied by opinio juris. To some extent evidence of both is already available, viz the mere signing of the Protocols in the belief that they reflect international law. But such evidence is limited and it is submitted that the signing of the Protocols is merely an incident of usage. It must be borne in mind that States are not bound by the commitment of the delegations to a multilateral treaty such as the Protocols and it is only by a process of ratification (initially) and later accession to such a treaty that a State can become bound. To date, such ratification or accession has been confined to a handful of States. Akehurst States that "the fact that a treaty has received few ratifications" is not necessarily an argument for not regarding it declaratory of customary law, since delay in ratification will frequently be due to "inertia and lack of parliamentary time". But while lack of ratification in the years immediately succeeding the conclusion of a treaty may not be significant , "the persuasive value of a treaty as evidence of customary law" will diminish in time if general ratification is not forthcoming. It would thus seem premature to assert or deny that the Protocols have acted as a catalyst to the development of customary law, it is certain, however, that it is only by widespread accession to, or at least, application of, the Protocols in the belief that they reflect law that customary law in line with the Protocols will emerge. There is no possibility that the conclusion of the Protocols, without more, constitutes an example of how custom may develop on the basis of a single act. The absence of opinio juris on the part of many States ensured that. Thus the Protocols constitute at most an incident of usage and to stand as customary law will have to be proven in the normal way. But in view of the widespread dissatisfaction with the law of war as it existed prior to the conclusion of the Protocols it would be surprising if their place in custom was not sought to be proven. In time this may well be achieved.'

I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that 'it is argued with growing conviction that under contemporary international law members of SWAPO and the ANC are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols', is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.

For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.

This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.

In the result, the preliminary point is dismissed. The trial must proceed.

1988 - ZAF

Decision of the Supreme Court in the case of State v. Petane

[Source: South African Law Reports, vol. 3, 1988, pp. 51-67.]

Judicial Decision
Bookshop \| Donate Derechos \| Equipo Nizkor