Amnesty Hearings — Cape Town — 2000-11-19

UNKNOWN: Now, well I think all one can say about where there is prima facie a grain of irrationality to the methods employed and the reason why they were pursued, that gives you even more reason to expect that the operatives who were involved would come along and at least endeavour to produce some cogent evidence to persuade you as to why their conduct was justifiable although one can understand why one would wish to avoid doing that because what evidence are you actually really going to come an produce, where you're going to explain why you as the government regarded it as justifiable in those circumstances to resort to murder.
	We say even if you look at the laws of war, it's clear from the laws of war that in any armed conflict the rights of the parties to the conflict the rights of the parties to the conflict to choose methods of warfare is not unlimited and what that means is once again.  The applicants lay great stress on this undeclared war situation in South Africa and they say you mustn't take an armchair approach and this, that and the other was happening.  The point I wish to make is a matter of international law, even if there had been a full blown war going on in this country with tanks and troops and aeroplanes, it doesn't mean that the rules of the game get thrown out and then you can just start shooting, whichever civilians you choose to shoot.  There is inherent in the laws of war is the concept of proportionality and the protocols of the Geneva Convention were partly introduced to say that in terms, say in a war situation we do not accept.  Just maybe to read in paragraph 67.2:
"The civilian population as such as well as the individual civilians shall not be the objective of attack."
And 67.3:
"Civilians shall enjoy the protection afforded by this section unless they take a direct part in hostilities."
Then paragraph 70 page 36 we refer to an American decision cited in the federal supplement ...(intervention)

MR LAX: Sorry, before you go there, my understanding of the protocols is that they did apply to these undeclared guerilla war situations.  In other words the additional protocols to the Geneva Convention were specifically introduced with the changing nature of warfare in mind and I know South Africa didn't sign them but certainly the ANC signed them and international - as I understand it, an international regime of human rights law regarded them as being applicable to the scenario that prevailed in South Africa at the time.

UNKNOWN: I don't have a copy of the AZAPO decision here but I think there is a footnote in that case that says certainly as far as the convention itself was concerned and this was litigated before in other matters, it was never accepted as a rule of law in South Africa, for whatever reason and my submission is not one that is really, for purposes of my submission, it is in fact irrelevant whether it was or wasn't accepted as a rule of law in South Africa.  The point is to test, as I put at the top of page 36, we say these are some assistance in assessing some of the circumstances under which it might ever be proportional, even in a situation of war for a unit of the army to murder civilians who do not take a direct part in hostilities.  That is the bottom line.  These are accepted international norms whether for reasons of some or other historical anomaly they were never given force of law in South Africa at that time either because it was not regarded as a declared war situation insofar as that may be relevant or because the parties refused - on or more of the parties refused to become signatories, that is of no great consequence.
	I then refer to the Mogmoet case where the court held that an act punishable even in the context of a declared war or in the heat of open military conflict cannot fall within the political offence exception.  Attacking civilians was, the court held, in breach of notions of civilized strife and thus not a political offence.  
 	I then refer to a case from the - that citation should be IRL not - it appears to be 1R1.  IRL - Irish Law Reports.  No, sorry now I'm getting mixed up if it's IRL or ILR.  Sorry, the citation would be ILRM 385.  That was the only case that I was able to trace that dealt with the murder of people with political profile but who were not involved in armed conflict.

CHAIRPERSON: I'm just thinking that comes through my head now, I'd just like you to deal with it.  We've been dealing with, as you know, thousands, hundreds of applications and many of them have concerned - I'm just using this as an example of let's say the APLA policies particularly during 1993, the year of the Great Storm, where any white person was regarded as an acceptable target and people were in fact killed who weren't involved in politics, just ordinary people but that killing by their operatives was entirely in line with the policy of their organisation and they have been granted amnesty, haven't been confronted with an argument that you've been putting up now but what do you say, they're all wrong?

UNKNOWN: No, I'm not saying that they're all wrong.  I just want to ...(intervention)

CHAIRPERSON: This is the sort of thing that we're faced with now and that has in fact happened and not on one occasion but on many, many occasions.

UNKNOWN: Well, maybe it's unfortunate that those issues were not properly canvassed and argued in some of those cases.  In either event, we believe that those sorts of cases are distinguishable in that as I've already pointed out, there is quite obviously a difference between dealing with governments and people who aren't in government.  I don't know what was said in those cases but notionally one can imagine people coming along and saying because of who I was and where I had come from and what it was that we did, this kind of conduct perpetrated by us was proportional.  I think it's dangerous though, I think as my learned friend Mr Bizos has said, we know that there is no law of precedent that applies here.  To try to endeavour to marry what happens in the decisions of the various Committees might not be an enviable part.

CHAIRPERSON: I think also what you've raised, it wasn't the stated policy of the government to kill civilians.

UNKNOWN: Yes, well at the time they denied it vehemently.

CHAIRPERSON: Yes.

UNKNOWN: I also recall that in the ...(intervention)

CHAIRPERSON: With that particular example it was and then the operatives they were being involving themselves in the furtherance of the objectives and aims of their movement by doing exactly that.

UNKNOWN: Sorry, I'm not sure I get the point?

CHAIRPERSON: APLA, when they were - when an operative killed a white civilian who wasn't involved in active politics, he was furthering the aims and objectives of his political organisation, stated aims and objectives that was known to all.  But that's not the case with a State employee or member, he's not pursuing the stated objectives of the government to kill civilians.

UNKNOWN: It's appears to be part of the reason for Joe Verster's bitterness is that he says it probably was but when push came to shove they would never admit to that and they dumped me.  We will never - from what we've heard in these proceedings we don't know what the truth of the matter is.  I don't think we have any - certainly no evidence is being led here to support the notion that it was part of government stated objectives.  If anything, Mr Verster's evidence would tend to suggest that even if it was, the government certainly never admitted it.

MR LAX: What about the applicant's argument that we should accept this because that's what the Truth Commission found in any event in relation to its general findings on the CCB and that was part of State's policies?