Amnesty Hearings — Pinetown — 1999-03-08

MR STEWART: Well in the event that I do, Honourable Member Judge Khampepe, I'm sure that you'll put me straight.
	Members of the Committee, we've heard over some five or six weeks of testimony last year, a trail of destruction, of murder, of attempted murder, which to all of us and indeed Members of the Committee who have sat in countless applications, I'm sure even for yourselves that much of what was heard was quite shocking.  And of course in many, many other applications a similar history, a similar background, has been painted, and similar incidents and events have been committed and have been spoken about.  
	By way of seeking amnesty in this application, we found it particularly difficult to identify the specific offences, more particularly in relation to the individuals who were the victims of those offences, and Members of the Committee will see that what we've sought to do in the schedules attached to our Head of Argument, is to set out as best we can the various acts, omissions and offences in respect of which amnesty is sought.  So far as we can tell through going through these schedules carefully we've covered all the necessary incidents.  For example it might be recalled in the evidence of Mr Dlamini, he withdrew his request for amnesty in respect of one particular incident because he wasn't able to clarify in his mind just which incident it was although it did appear in his statement and it got mixed up with some of the others.  That incident doesn't appear in these schedules, and we've done the best job that we can and we hope that they're all in order.  Those are the acts and offences in respect of which we apply for amnesty.  They cover, as of course you're aware, a number of years, commencing on the whole in 1986, when each of the three applicants whom I represent, received training, well two of them received training, one of them was involved in doing the training at the Caprivi, and then they returned, and from that time, from late 1986 until into 1993, they were involved in a whole range of incidents, as the Committee's heard.
	By way of comparative background, it may be worth giving some brief consideration to one event in the second world war, and I have alluded to this in my Heads of Argument, and I do it only to answer the vexing question as to whether the so called random attacks on civilians and in civilian areas, can be regarded to be attacks associated with a political objective, as the requirement of Section 20, sub 1, of the Act which covers these proceedings dictates.  And it will no doubt be known to Members of the Committee and indeed possibly better known to you than to me because I'm no historian, that towards the later stages of the second world war Allied Bomber Command took a decision to deliberately bomb civilian areas in Germany, and more particularly in Dresden, being the more significant or well known of these incidents.  And in February 1945, Sir Arthur Harris, who headed that bomber command and became known as Bomber Harris, was instrumental in taking that decision, and attacks were launched on civilian areas in the city of Dresden.  In the first night alone 772 aircraft dropped bombs on Dresden, and it's unclear but the estimates range between 50 000 and 250 000 people were killed in the ensuing weeks of attack.  And that incident in particular has raised much moral controversy at the time and subsequently, as to whether that could have been justified, or was justified.  And the way in which it was justified at the time, or the objective which was given, sought to explain that activity.  There were many.  
	The first was, and perhaps the most prominent, was that it was an attempt to lower the civilian morale in Germany at the time, and to try and ensure that German citizens removed their support for the Nazi war effort, and it was consequently to make the continuance of the war more costly for civilians.  It was also described as a policy of dehousing, as opposed to trying to kill civilians particularly, but to dehouse them, because that then placed added demands politically and in the form of resources.  And it was even regarded to be something of a retaliation for the ongoing attacks in London, although there was no equity there inasmuch as only some 60 000 people, civilians, were estimated to have been killed in bombings in England, and some 800 000 in Germany during the course of the war.
	Now of course, the question or the issue before the Amnesty Committee is not one of morality, and the debate which has focused or centred on the bombings of Dresden, has been one largely of morality.  But the Members of the Committee are not called upon to make a moral judgement as to whether the incidents in respect of which we seek amnesty were morally justifiable.  And indeed in respect of some of them it would be very difficult to advance an argument that they were morally justifiable.  But the way in which the Act has been structured, and the political compromise that was reached, is in my understanding and in my submission one which doesn't pertinently raise that question of morality.  
	The Members of the Committee are asked to decide, amongst other things, whether those acts were ones associated with a political objective, and then there're other considerations in particular which are set out, which would assist the Members of the Committee in arriving at their conclusions as to whether those acts were really ones associated with a political objective.  And we submit that in each of the incidents, and we don't intend traversing each one although we will draw specific attention to some of them, we submit that in each of the incidents it has been established with sufficient certainty that the acts were acts associated with a political objective, and that includes the so called random attacks, and I'll get to those more specifically.

CHAIRPERSON: Indeed, on that question Mr Stewart, would it not also be relevant whether or not the perpetrators were acting under order?

MR STEWART: It would most certainly be relevant Mr Chairperson, thank you.  It would most certainly be relevant, but ...(intervention)

CHAIRPERSON: What is the foot soldiers function to query the order of a superior?

MR STEWART: Well, exactly.  Of course in the debate on morality the argument would be that a foot soldier has a moral obligation to question immoral orders, and possibly a moral obligation to disobey immoral orders.  That as I've said doesn't arise pertinently here, and where a foot soldier has been ordered to do certain things said to be for a political objective, and he does them, moral or immoral, then that would in my submission qualify as an act committed with a political  objective.

SISI KHAMPEPE: That would certainly be covered by Section 20 subsection 3(e) isn't it?