Amnesty Hearings — Cape Town — 2000-11-19

UNKNOWN: I would suggest that had that happened, one would have seen a set of amnesty applications setting out in great detail why Michael Evans was targeted and not Gavin Evans but be that as it may.
	Now we've looked at a number of decisions from other countries concerning the law of extradition, the law of asylum, in regard to the circumstances under which the murder of a civilian might ever be construed as being proportional to the objective pursued.  Now might I ask you to please just read what is here stated together with what is contained at paragraphs 53.1 to 53.8 of the Heads because what - if maybe I could just turn there briefly, what we've tracked there is some attempt to look at the themes which emerge in literature concerning the circumstances under which the targeting of civilians might ever be justified and one starts off from the understanding that in almost all the foreign literature where you're dealing with people who say my response was proportional, I committed a common law offence but the political nature of that offence outweighs its common law nature.  They say I was in opposition to the government, I was forced to resort to such steps because these were the only means by which I could effect political change in the country in which the crime is being committed.
	Then if you look at the cases.  When people come and say that, the courts looked long and hard.  What we say in paragraph 53.2 to see whether the proportionality of the crime to the alleged goal is such that the political element of the crime outweighs its common law character and those cases, I should just mention in passing, they draw a distinction between crimes which are per se political and others, like treason and so on and so forth.  But as soon as you move into this sphere of murder, what we say at the top of page 27 is that people who commit such crimes and here I would obviously include conspiracy to murder, have a hard road to hoe.  The tendency is not the brand such crimes as political unless the claimant can show that the regime against whom the offence was directed is repressive and offers no scope for change by peaceful and non-violent means, therefore I was forced into the situation where I had to resort to murder.
	Then we submit and I think this is of considerable significance in the context of this matter, crimes committed by governments for political reasons, fall into a different category.  We say it is difficult to comprehend how as a matter of international and comparative law serious common law crimes committed by government agents against private citizens might be viewed as being proportional and thus capable of being branded as political crimes.
	I say as a matter of international comparative law because I recognise that in the context ...(intervention)

CHAIRPERSON: You can't extradite a government so the principle is an ...(indistinct) that would apply to government.

UNKNOWN: No, but what you can have is someone who operated as part of a death squad on behalf of a South American government that was in power but is no longer in power and then the new regime attempts to extradite that person say from Canada.  He comes along and he says "I was part of the death squad operating on behalf of the government."  The question there which immediately asked is why does a government which has the courts and the law of the land and the detention without trial at its disposal, why is it forced to make use of you to go out and assassinate people.  Now what we say is, it would be of the greatest of difficulty that anybody in a foreign court would succeed in preventing extradition on that premise but we recognise that quite obviously in the context of this Act, Committees do recognise that exceptional circumstances might exist where somebody can come along and actually prove to you that even though they were an agent of the government for some or other reason, it became proportional to resort to the commission of murder and what we say later on, we say notionally we presume somebody could produce such evidence.  We have difficulty in conceiving of it but you don't need to get bogged down in the circumstances under which someone might notionally produce such evidence.  No ...(inaudible)
...(inaudible) heard any evidence which goes to show why the government of South Africa in 1989 with all the means at its disposal became obliged to target civilian politicians for assassination.  We submit that the applicants do not begin to convince you that their conduct was proportional to the need that the State had to take steps against its enemy.
	And 53.5, I've already made that point.  Moving over to page 28, 53.6, we say that even soldiers who have killed innocent civilians while engaged in fire fights with armed enemy insurgents faced problems in justifying their actions and that's the situation where I open fire on the enemy who I believed to be there but there were civilians there at the time and I shot them at the same time.  Notionally, you could come along and say well, for reasons x, y and z, the killing of a civilian in those circumstances is proportional.  Once again, with the greatest of difficulty, but it is conceivable.

CHAIRPERSON: Often assisted by the giving the orders to shoot and that sort of ...(intervention)

UNKNOWN: That might be part of, yes.

CHAIRPERSON: ...(inaudible) on proportionality.

UNKNOWN: And that's also, it's a good example again of why we say the proportionality of the response of the Generals and the foot soldiers has to be assessed differently in relation to the factors in Section 20(3) because each persons motive in that context may be different and their reasons for why they participated.  We say we have not been able to trace any case where an attack mounted by soldiers and directed against unarmed civilians has been used as a basis to claim that these actions should be recognized in law as constituting political offences.  In other words, there's obviously a distinction between what some people euphemistically refer to as collateral damage, that is caused to civilians while you are in fact attacking an armed enemy and a situation where you directly target civilians and what we say when we go back to the other section in the Heads is we can't really perceive of a situation where somebody would attempt to come and justify that in the context certainly of a declared war situation never mind an undeclared war situation because it is directly against the terms of the Geneva Convention and that would probably explain why nobody would get up, has attempted to get up in a court of law and say this, it is proportional to murder civilians.

CHAIRPERSON: Also, when you talk about civilians and I don't know if it's correct at all, but we keep on hearing that the term innocent civilians, you know, you might have a situation where you've got a so-called innocent civilian is a person who you don't even know what that person's political views are and you might have a situation where you've got some sort of riot taking place which is politically charged.  I don't know if you talk about civilians whether one can justifiably distinguish between civilians on that basis?

UNKNOWN: I suppose the only consequence of that distinction is that obviously insofar as it would ever be possible to justify such conduct as being proportional, it would obviously be far more difficult to justify bombing a village of people who have absolutely no connection whatsoever with the war to a situation where you might target.

CHAIRPERSON: Yes.

UNKNOWN: It might have been a march of trade unionists who are not carrying any weapons.

CHAIRPERSON: But who in one or other way are damaging shops or whatever.  I mean the sort of situation contemplated in B, for example, while you're looking a F.