^1. The placing of wagons in a defensive circle by boers, a defensive tactic frequently resorted to during their trek into the African interior, this word has come to symbolise official South African mentality during the apartheid years.

^2. Most particularly the Internal Security Act 74 of 1982 which in section 54 created the offences of ‘terrorism’, ‘subversion’ and ‘sabotage’ among others.

^3. See Cassese, A., Self-Determination of Peoples: A Legal Reappraisal (Cambridge, University Press 1995) pp. 108–133.Google Scholar

^4. Rosas, A., The Legal Status of Prisoners of War (Helsinki, Suomalainer Tiedeakatemia 1976), notes at p. 357,Google Scholar fn. 7, that the ‘doctrine of wars of national liberation is based on the assumption that the representatives of the people engaged in the struggle are not bound by any duty of allegiance to the colonial or alien power, and thus may not be punished by it as rebels and traitors.’ On wars of national liberation see generally Abi-Saab, G., ‘Wars of National Liberation and the Laws of War’, 3 Annales de Etudes Internationales (1972) p. 37;Google Scholaridem, ‘Wars of National Liberation in the Geneva Conventions and Protocols’, 165 Recueil des cours (1979) pp. 353–445.Google Scholar On the conflict in South Africa see Asmal, K., The Status of Combatants of the Liberation Movement of South Africa under the Geneva Conventions of 1949 and Protocol 1 of 1977 (1980) (unpublished).Google ScholarWilson, H., International Law and the Use of Force by National Liberation Movements (Oxford, Clarendon Press 1988).Google Scholar

^5. See General Assembly Resolution 3103 (XXVIII), adopted in 1973.

^6. Abi-Saab (1972), loc. cit. n. 4, at p. 93, submitted that they were ‘powers’ in terms of common Art. 2(3) of the 1949 Geneva Conventions, thus bringing into operation humanitarian law in the conflict between them and the ‘high contracting part’ South Africa. But this interpretation has been largely rejected; see Boister, N., ‘The Application of the Corpus of the International Law of Armed Conflict in the South African Armed Conflict by Means of Common Article 2 Paragraph 3 of the Geneva Conventions of 1949’, 22 Comparative and International Law Journal of Southern Africa (1989) pp. 215–222.Google Scholar

^7. 1977 Geneva Protocol I additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of the Victims of International Armed Conflicts, XVI UKPP, p. 471.

^8. The First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 UNTS p. 31; the Second Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 UNTS p. 85; the Third Geneva Convention relative to the Treatment of Prisoners of War, 75 UNTS p. 135; the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, 75 UNTSp. 287.

^9. See, for example, S v. Petane, 1988 (3) SA 51 (CPD).

^10. 1977 Geneva Protocol II additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of the Victims of Non-International Armed Conflicts, XVI UKPP, p. 471.

^11. Scant attention has been paid to classifying the South African conflict from a geo-military point of view. It took many forms. While within South Africa's territory it was generally of low intensity and involved sabotage, terror, street-level revolt, detention, torture and crushing repression, it took on the form of a conventional military engagement in the battlefields of Angola where members of the ANC and government forces engaged with each other. O'Shea, A., ‘Should Amnesty be Granted to Individuals Who are Guilty of Grave Breaches of Humanitarian Law? – A Reflection on the Constitutional Court's Approach’, 1 The Human Rights and Constitutional Law Journal of Southern Africa (1997) p. 24 at pp. 27–28, examines the historical evidence concludes that it was an ‘armed conflict’ in the humanitarian law sense of the term.Google Scholar

^12. On the ANC's 1980 declaration see Borrowdale, A., ‘The Law of War in Southern Africa: The Growing Debate’, 15 Comparative and International Law Journal of Southern Africa (1982) p. 41. He notes that the declaration was not made in terms of Art. 96(3) of Protocol 1, which sets out the formal accession procedure for national liberation movements, because (i) it was not unconditional and (ii) it did not comply with the required formalities. The fact that the ANC did not comply with the formalities suggests that it did not itself believe that the conflict was international.Google Scholar

^13. 1988(3)SA 51(CPD).

^14. lbid., at 65B.

^15. 1990 (l)SACR 577 (SWA).

^16. 1983 (1) SA 833 (SWA). See Murray, C., ‘The Status of the ANC and SWAPO in International Humanitarian Law’, 100 South African Law Journal (1983) p. 402 at p. 404.Google Scholar

^17. Murray, loc. cit. n. 16, at pp. 408 et seq., citing S v. Mogoerane and others, TPD 6 August 1982 (unreported). The argument was also unsuccessful in the unreported TPD Northern Circuit decision of S v. Mncube and Nondula case cited in the 42 Annual Survey of South African Law (1988) p. 76; See Dugard, J., ‘Soldiers or Terrorists? The ANC and the SADF Compared’, 4 South African Journal of Human Rights (1988) p. 221.CrossRefGoogle Scholar

^18. For example, S v. Buthelezi and Others (D&CLD), 22 September 1982 (unreported).

^19. 1990 (4) SA 709 (A).

^20. Ibid., at 718C.

^21. 1996 (4) SACR 562 (CPD).

^22. Act 34 of 1995.

^23. Act 200 of 1993.

^24. Farlam J concurring.

^25. Supra n.21, at 571G-575C.

^26. Bernhardt, R., Encyclopedia of Public International Law, Vol. I (Amsterdam, North-Holland 1992).Google Scholar

^27. Motala, Z., ‘The Promotion of National Unity and Reconciliation Act, the Constitution and International Law’, 28 The Comparative and International Law Journal of Southern Africa (1995) p. 338 at p. 339.Google Scholar See generally on the duty of a succeeding government to prosecute international crimes committed by individuals in the previous regime Orentlicher, D., ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’, 100 Yale Law Journal (1991) p. 2537 at p. 2593.CrossRefGoogle Scholar

^28. Section 231(4) provides: ‘The rules of customary international law binding on the Republic shall, unless inconsistent with this Constitution or an Act of Parliament, form part of the law of the Republic’ Nonetheless, Dugard, J., ‘Is the Truth and Reconciliation Process Compatible with International Law? An Unanswered Question?’, 13 South African Journal of Human Rights (1997) p. 258 at p. 263, comments that this opinion was both unnecessary and unwise as it ‘seriously undermines the Constitution's clear intention of establishing harmony between international and municipal law.’Google Scholar

^29. Supra n. 21, at 574G.

^30. Ibid., at 574I-575A.

^31. 1996 (4) SA 671 (CC). Various aspects of the decision have been examined in Dugard, loc. cit. n. 28, who provides a summary of the background to the conditional amnesty that formed the subject matter of the case, and then comments negatively on the poverty of international law in the decision. See also Braude, C. and Spitz, D., ‘Memory and the Spectre of International Justice: A Comment on AZAPO’, 13 South African Journal of Human Rights (1997) pp. 269–282;Google ScholarMoellendorff, D., ‘Amnesty, Truth and Justice’, 13 South African Journal of Human Rights (1997) pp. 283–293.Google Scholar

^32. Chaskalson P, Ackermann, Kriegler, Langa, Madala, Mokgoro, O'Regan and Sachs HJJ concurred in the judgment of Mahomed DP. Didcott J wrote a separate concurring judgment. Mahomed DP has subsequently left the Constitutional Court and become Chief Justice of South Africa.

^33. Supra n. 31, at 687D-691G.

^34. Art. 49 of the First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Art. 50 of the Second Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Art. 129 of the Third Geneva Convention relative to the Treatment of Prisoners of War and Art. 146 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War.

^35. He too refers to the requirement in Art. 35(1) of the necessity of only ‘having regard’ to international law in interpreting the Constitution's bill of rights.

^36. Supra n. 31, at 676D-E.

^37. Ibid., at 689, fn. 29.

^38. Ibid. This finding ignores the ANC's purported declaration in terms of Art. 96(3) made to the UN, just as Mahomed DP had earlier ignored the fact that South Africa clearly was party to the 1949 Conventions at the time of the conflict. Nonetheless it is submitted that acknowledgement of the fact of the ANC's declaration would not have substantially altered his finding, because, as noted above, the ANC's declaration did not comply with Art. 96(3). With regard to South Africa being party to the Conventions, it would have been of little assistance to the national liberation movements as they were not party to the Conventions.

^39. He refers to Dugard, J., International Law: A South African Perspective (Juta, Capetown 1994) p. 333.Google Scholar

^40. Supra n. 31, at 689D-690B.

^41. Act 34 of 1995.

^42. CDDH/1/SR3 at 37 – Italian delegate.

^43. Kalshoven, F., ‘Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts: The First Session of the Diplomatic Conference 20 February-29 March 1974’, 5 NYIL (1974) p. 3 at p. 32.CrossRefGoogle Scholar

^44. The response of the United Kingdom to this indeterminacy was to set a geo-military threshold in Art. 1 by reference to the high objective threshold for application in Art. 1 of Protocol 2. Its declaration on signature of the Final Act of the Conference reads: ‘(a) in relation to Art. 1, that the term “armed conflict” of itself and in its context implies a level of intensity of military operations which must be present before the Conventions and the Protocol are to apply to any given situation, and that this level cannot be less than that required for the application of Protocol 2, by virtue of Article 1 of that Protocol, to internal conflicts.’ Annex to the UK Declaration on signature of the 1977 Protocols, para. (a).

^45. Draper, G., ‘The Implementation of the Geneva Conventions of 1949 and the Additional Protocols of 1978’, 164 Recueil des cours (1979) p. 47.Google Scholar

^46. Supra n. 31, at 689D.

^47. Supra n. 21, at 574I.

^48. See the statement by the UK delegate before the UN Human Rights Commission: ‘A vivid example – perhaps the example par excellence – of a people which is today denied the right to be in charge of its own destiny – that is to say, the right to self-determination – is the non-white population of South Africa … The system of apartheid, which denies them any role in deciding how they should be governed or what sort of society they should live in, is the very negation of the right to self-determination …’, 59 BYIL (1988) p. 442.

^49. Rosenblad, E., International Humanitarian Law of Armed Conflict (Geneva, Henri Dunant Institute 1979) p. 37, points out that Protocol I is retrospective, just as the Hague and Geneva Conventions were. It pays no attention to essential new trends, for example frequent use of guerilla warfare in non-international conflicts. He submits that it should have included all armed conflicts of an international character.Google Scholar

^50. Cassese, A., ‘A Tentative Reappraisal of the Old and the New Humanitarian Law of Armed Conflict’, in Cassese, A., ed., The New Humanitarian Law of Armed Conflict, Vol. 1 (Naples, Editoriale Scientifica 1979) p. 468.Google Scholar

^51. Lysaght, C., ‘The attitude of the Western Countries’, in Cassese, ed., The New Humanitarian Law of Armed Conflict, op. cit. n. 50, p. 349 at p. 354.Google Scholar

^52. In future conflicts of this nature whose international character is denied, it will be of importance that the distinction between international and non-international conflicts for the purposes of the application of humanitarian law is blurring as a result of the decision in The Prosecutor v. Dusko Tadic, 35 ILM (1996) p. 32, where the appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia held that state practice had resulted in the extension of the law relating to methods of warfare to non-international armed conflicts.

^53. One of the legal problems with the application of common Art. 3 is that the South African conflict did not take place entirely inside South Africa. O'Shea, loc. cit. n. 11, at pp. 28–29, argues on a close reading of the texts of common Arts. 2 and 3 of the 1949 Geneva Conventions, that common Art. 3 must have been intended to apply to conflicts of an internal character, such as that in South Africa, which were not between states but which did not take place exclusively within the territory of the state. He reasons that common Art. 2 relating to international armed conflicts does not cover such conflicts and it could not have been the intention of framers of the Conventions to exclude such conflicts from international control. See also Boister, N., ‘The Legal Regulation of the South African Armed Conflict by Common Article 3 of the 1949 Geneva Conventions’, 14 South African Yearbook of International Law (1988–9) p. 14.Google Scholar

^54. It has been submitted elsewhere that humanitarian law may have had a substantially greater impact on the conduct of the conflict in South Africa if Art. l(4)'s proponents had chosen to avoid a solution unacceptable to the apartheid government and thus unworkable given South Africa's sovereignty, and had rather made a major effort to expand the law of non-international armed conflict in Protocol II with a low threshold of application so that it applied to the South African armed conflict. See Boister, N., ‘The ius in bello in South Africa: A Postscript?’, 24 Comparative and International Law Journal of Southern Africa (1991) pp. 72–87.Google Scholar

^55. See The Prosecutor v. Dusko Tadic, 35 ILM (1996) p. 32 at p. 72 and Braude, loc. cit. n. 31, generally.

^56. Supra n. 31, at 695C.