… This report has three objectives. The first is to provide some background information on what will become an increasingly significant aspect of South African affairs in the 1980s. The second is to show the contribution which the southern African national liberation movements have already made to the progressive development of the laws of armed conflicts. The final objective is to provide some detailed information on the law of armed conflicts. The overall intention is twofold: (a) to provide a new dimension to the struggle against apartheid: the role and importance of the laws of armed conflicts; and (b) to provide a number of specific policy suggestions for United Nations bodies and others opposed to apartheid.
Liberation movements, especially within southern Africa, have contributed to the new laws of armed conflicts. Firstly, they revealed the considerable weakness of the old laws of armed conflicts. Secondly, the struggles by these movements were recognised eventually by the international community as being sufficiently important to warrant what was to become one of the most thorough reviews of the laws of land warfare in the past 110 years. Thirdly, the liberation movements participated in the Geneva Diplomatic Conference which drafted the new laws.
The new laws of armed conflicts owe a great deal to the southern African liberation movements. Indeed, without those movements, it is likely that the preparatory work of the new laws may have been delayed. A few years later, with work well advanced on the new laws, it seemed, ironically, that the entire project would grind to a halt because of disagreements over the liberation movements. Even though most of the movements achieved victory before work on the new laws was eventually completed, they still influenced opinions about the new laws when the new treaties were opened for signature…
The scope of international law covering armed conflicts is approximately as broad as that covering peace. International law does not suddenly cease to exist in the event of armed conflicts. Diplomatic relations, treaty relations, government aid and the rights of persons, such as tourists, finding themselves in the territory of the government with which their government is now at war, are all aspects of international law’s involvement in wartime issues. There are also the rights and responsibilities of nations wishing to remain neutral in the armed conflict.
The laws regulating armed conflicts can be broadly divided into two categories. One category consists of laws which regulate the conditions under which a government may or may not resort to war as an instrument of national policy. The present situation is governed by Article 2(4) of the Charter of the United Nations, which has in effect outlawed the use of war except for self-defence or when used by the United Nations:
“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United
Nations.”
Judging by the wars that have taken place since the Charter of the United Nations was written in 1945, this has not had as much success as its authors hoped.
The other category of laws regulates the way in which armed conflicts are fought. This category is the basis of this report.
The second category has sometimes been classified as the Law of the Hague and the Geneva Conventions. The Law of the Hague lays down the rights and duties of belligerents in the actual conduct of hostilities and limits the use of weapons. Most of this branch of the law is the product of the Hague Peace Conferences of 1899 and 1907, especially the Fourth Hague Convention Concerning the Laws and Customs of War on Land. The law of the Hague also includes other instruments, not drawn up at the two peace conferences, such as the Declaration of St. Petersburg, 1868, prohibiting the use of explosive bullets and the 1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous, or other Gases and of Bacteriological Methods of Warfare.
The Law of Geneva consists of rules designed to ensure respect, protection and humane treatment of war casualties and non-combatants. These rules have been periodically revised and adapted to modern needs and conditions. The 1949 Geneva Conventions, at least in their application to international conflicts, represent a recent and relatively complete codification of these rules. They contain detailed provisions for the benefit of the persons to whom they relate; civilians, prisoners of war, the wounded, the sick, the shipwrecked. The four Conventions also establish machinery designed to ensure, as far as possible, that the rules laid down are observed.
The origin of the Geneva Conventions could be traced back for many centuries to the customs that had evolved in ancient wars but it would take too much space to trace this evolution. It is easier to begin on the evening of 24 June 1859, at Solferino, where Europe’s largest battle since Waterloo in 1815 had been fought that day. Quite by accident, a Swiss businessman, Jean Henri Dunant, was present and helped in the care of the wounded that evening. He noted that many wounded died simply because of a lack of medical treatment. As one Dunant biographer has commented:
“It is important to remember that for literally thousands of years neither the means nor the wish to care for the wounded existed. Ordinary foot soldiers were considered just so much cannon fodder, men to be kept clothed and fed only well enough to be efficient in battle. If they were wounded or died it was scarcely thought of in personal terms.”
Dunant was shocked by what he had seen and wrote a book, A Memory of Solferino, which soon became a “resounding and widespread success,” coming as it did soon after Florence Nightingale’s publicised activities for wounded personnel in the Crimean War. In this, Dunant asked:
“Would it not be possible in time of peace and quiet to form relief societies for the purpose of having care given to the wounded in wartime by zealous, devoted and thoroughly qualified volunteers?”
Along with four other Geneva citizens, Dunant formed the International Committee for the Relief of the Wounded. In October 1863 this Committee convened in Geneva a conference of civil servants and doctors from 16 nations to discuss the possibility of creating national private committees for the relief of the wounded. From this conference has grown the International Red Cross. This organisation is composed of three sections: the International Committee of the Red Cross (ICRC), which is the continuation of the Committee founded by Dunant and acts as the neutral intermediary in wars and is responsible for the revision of the Geneva Conventions; in every State (including Switzerland) there is a national Red Cross Society which handles the relief of victims of war and natural disasters (ICRC usually co-ordinates the Societies’ war relief work); also in Geneva but separate from ICRC is the League of Red Cross Societies which co-ordinates the Societies’ natural disasters relief work.
The Conference also agreed on the “Red Cross” emblem, which just happens to be the reverse of the Swiss federal flag (white cross on a red background) but the exact reason for the choice of what is one of the world’s most famous emblems is obscure; there was no religious significance.
A third important point of agreement was the principle:
“That in time of war the belligerent nations should proclaim the neutrality of ambulance and military hospitals, and that neutrality should likewise be recognised, fully and absolutely, in respect of official medical personnel, voluntary medical personnel, inhabitants of the country who go to the relief of the wounded, and the wounded themselves.”
The importance of this principle may be seen in two ways. Firstly, it provided the legal basis for relief bodies to intervene in wars as an independent party and, secondly, by proclaiming all wounded to be neutral, this principle reversed the traditions of all countries which claimed that medical priority should be given to their own troops who needed help since they were fighting for the “right side”; now it made no difference what side a soldier had been fighting for.
To implement these ideas, a Diplomatic Conference was required and this took place in 1864 in Geneva. It resulted in the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, which was revised in 1906. In 1929, this Convention was revised again and joined by the Geneva Convention on Prisoners of War. At the 1949 Diplomatic Conference, the present four Conventions were agreed: for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, for the Treatment of Prisoners of War, and for the Protection of Civilian Persons in Time of War.
The trend in the Conventions is both to spread the category of persons covered (wounded personnel, to prisoners of war [POWs], to civilians) as well as to extend the provisions relating to each category so that the provisions agreed on in 1949 are very detailed. For instance, in article 49 of the POW Convention, non-officer POWs who are fit may do certain types of work; non-commissioned officers (NCOs) shall only do supervisory work; and officers may not be compelled to work at all. Under article 71, all POWs are to be allowed to receive not less than two letters and four cards monthly.
It could be argued that it is pointless having laws of war since when wars break out the object is to win and this must take priority over any legal niceties. A discussion of this argument would go beyond this paper’s scope, but four observations should be made. First, many acts are not regulated by the laws of war and so it is unfair to blame the laws for not preventing these acts. Second, where the laws do apply they are more often followed than people give them credit for; for instance it is now rare for soldiers to be instructed to take no prisoners in a battle, in other words, that everyone captured is to be killed. Third, the obligations imposed upon States by the laws are not onerous so that most provisions can be easily followed without causing a side to lose the war. Therefore, the laws are followed by one side, and the other side is thereby encouraged to do the same so as to appear to be just as much a respecter of international law as is the former side. Finally, even if the laws are followed on only one occasion in a war, the people who benefit from that rare occurrence would certainly not regard the laws as being pointless.
The Geneva Conventions were a splendid monument of legal reasoning. But they were written with, quite naturally, the memories of the Second World War still fresh in everyone’s memory. The conflicts since 1945 have almost always taken on different forms, and the Geneva Conventions have had only a limited application.
First, wars traditionally took place between nations, and so the Geneva Conventions and the Law of the Hague have been based on government-to- government conflicts. However, most conflicts since 1945 have lacked a clear international character and have tended to be more of a non-international character. At the 1949 Geneva Diplomatic Conference there was the new provision, which had no precedent at all in earlier Geneva Conventions, in providing an article (number 3, common to all four Geneva Conventions) providing respect for basic human values and prohibiting certain acts. The application of the article would not affect the legal status of the parties at conflict. Article 3 was a convention within a convention. ICRC, which had been active in the Spanish Civil War (1936-1939), argued strongly for such an article. Also, although Article 2(4) of the Charter of the United Nations outlaws international conflicts, it does not touch upon non-international conflicts.
Article 3 was the most hotly debated issue at the 1949 Geneva Diplomatic Conference. Even at that point, when there were - by later standards - few non-international conflicts being fought, it was clear that many governments had doubts about the article. The doubts were slightly eased by a lack of precise definition of when an internal disturbance had reached the level of a non-international conflict. They could hope, therefore, to evade having to follow article 3 by claiming that in fact it did not apply to their internal conflicts. Experience from 1949 has shown that Governments have almost always tried to evade their responsibilities under article 3.
Another problem concerned the application of the Geneva Conventions to wars of national liberation. Such wars were already in progress by 1949 and several more were to come. But the Geneva Conventions were mainly devised by Governments which had colonial empires, or were often sympathetic to those who had, rather than third world countries, of which very few were independent in 1949, and the countries with centrally-planned economies. No specific provision was made at all for wars of national liberation. As with the previous problem, then, the drafters of the 1949 Geneva Conventions were more influenced by what had already happened - rather than creating laws for what could happen. This is, of course, a common criticism addressed to law-makers. Be they working at the local, national or international level, they draft laws in reaction to existing and past problems rather than as ways of avoiding future problems.
Wars of national liberation did not have in 1949 the same publicity which they were later to enjoy. In 1949 it was widely assumed that the decolonisation process would be slow, orderly and done on the basis of negotiation. Southern Africa was, owing to white intransigence, going to be a difficult decolonisation process.
Third, guerrilla warfare received no specific attention. Once again, this omission reflected the historical, cultural and legal background of most, but not all, nations represented at Geneva. Their method of fighting on land was based on an honour code going back centuries: their soldiers wore uniforms, carried their arms openly, fought in organised groups and in theory anyway, obeyed the laws of armed conflicts. Guerrilla warfare is, ironically, the world’s oldest form of fighting because it has the opposite qualities to those listed in the previous sentence, although such fighters often had their own limits to violence which constituted their laws of armed conflicts. Most opposition to European colonial expansion was conducted by guerrilla warfare. It remains the method of warfare of poor, oppressed people. But, of course, the two World Wars, which so overshadowed the creation of the 1949 Geneva Conventions, were largely conducted by conventional warfare.
In sum, the Geneva Conventions were designed to regulate conventional international conflicts. No special attention was given to wars of national liberation. If these were classified for the benefit of the Geneva Conventions, as non-international conflicts, then only one Article - out of about 400 - applied to such conflicts. No attention was given to guerrilla fighters, thereby implying that such persons were not “privileged” combatants. The laws of armed conflicts began as rules dealing only with persons who fought or were otherwise directly involved in a conflict; the Fourth Convention, on civilians, is therefore the newest. Persons who are “privileged” can expect prisoner-of-war (POW) status upon capture and medical treatment. Combatants who are not “privileged” are not eligible to the protection of international law. They are, therefore, branded as “bandits,” “terrorists,” etc., and subject to the usually severe national laws against such persons.
The 1949 Geneva Conventions, while being respected in some conflicts and providing a legal foundation for the International Committee of the Red Cross to apply for permission to carry out its valuable humanitarian relief work, have not been as successful as was hoped for in 1949. The blame does not reside with ICRC. Most of the world’s nations are now bound by the Conventions. Each party is therefore obliged to carry out article I common to all four conventions:
“The High Contracting Parties undertake to respect and to ensure respect for the present convention in all circumstances.”
Those are strong words and no party at all can claim to have followed them in all conflicts, including those in which they were not directly involved and yet for which they had an obligation to ensure respect for the four conventions.
From 1968 onwards, the United Nations General Assembly adopted resolutions requesting the implementation of the Geneva Conventions in the southern African liberation struggles. In resolution 2383 (XXIII), the General Assembly called upon the United Kingdom to ensure the application of the third (POW) Convention to the Rhodesian conflict. In resolution 2395 (XXIII), it called upon Portugal to ensure the application of the third Convention to the struggles in its Territories. In resolution 2396 (XXIII), dealing with South Africa’s apartheid policies, it expressed “grave concern over the ruthless persecution of opponents of apartheid under arbitrary laws and treatment of freedom fighters who are taken prisoner during the legitimate struggle for liberation and condemns the Government of South Africa for its cruel, inhuman and degrading treatment of political prisoners.” It called again for the release of such prisoners. And it declared “that such freedom fighters should be treated as prisoners of war under international law, particularly the Geneva Convention relative to the treatment of Prisoners of War of 12 August 1949.” The South African Government ignored the request and was condemned for it by the General Assembly. It is notable that those Western Powers which have special influence in South Africa as a result of their financial investment, did nothing to carry out their obligations under article I of the Third Geneva Convention.
South Africa’s attitude illustrates another weakness of the Geneva Conventions and most of international law in general; lack of external enforcement measures. International military tribunals, on the post-Second World War Nuremberg pattern, have been rare in human history. Indeed, from the victims’ point of view, the important matter is to discourage a government’s abuse of the Geneva Conventions from the outset, rather than having some system of punishment after the violations have been committed. The victims of apartheid require protection now, rather than assurances that their tormentors may later stand trial by some international system, which, of course, is not even envisaged at present.
Finally, the legal vacuum created by South Africa’s attitude towards the Geneva Conventions has highlighted another weakness of the Geneva Conventions: if a government regards its opponents as “terrorists” or “bandits,” then this encourages such persons to act like terrorists or bandits. There is no incentive for them to follow the laws of armed conflicts. At present, of course, the liberation movement’s level of violence is minute compared with the direct violence used by the South African Government’s forces. But the government’s attitude is putting the people at risk. The people are suffering because of the government. Before looking at that suffering and its implications for the future, it is necessary to look at the way in which the Geneva Conventions have been updated.
“In one very important field, the protection of human rights in armed conflicts, some concrete progress has been made this year. A resolution sponsored by India, Czechoslovakia, Jamaica, Uganda and the United Arab Republic was unanimously adopted (with two abstentions) at the International Conference on Human Rights in Teheran, drawing attention to the inadequacy of the existing humanitarian conventions both as regards their scope and effective application to the armed conflicts which disgrace our age. The resolution also calls for the conventional protection of the victims of racist and colonial regimes and the protection under international law of such victims who are imprisoned and for their treatment as prisoners of war or political prisoners under international law.
“This resolution is really worthwhile and may well be the most valuable concrete result of Human Rights Year. It is to be hoped that top priority will be given to its implementation.
“It is noteworthy that this important resolution was no doubt inspired by the sustained pressure of the non-governmental sector for action in this much neglected area of human rights; it is the area in which the most massive destruction of human life and rights occur.”
That was how Sean MacBride, the person most responsible for the resolution on human rights in armed conflicts, described the resolution. The resolution adopted by the International Conference on Human Rights held in Teheran, from 22 April to 13 May 1968, reflected international concern over the suffering of civilians and armed personnel, particularly in the Indo-Chinese, Middle East and southern Africa conflicts.
The resolution had several significant results. Firstly, it injected a fresh legal dimension into consideration of these conflicts, especially at a time when only the Indo-Chinese conflict was receiving detailed consideration by international lawyers. Secondly, for the first time it established linkage between human rights, armed conflicts and the laws of armed conflicts. Thirdly, it paid particular attention to the plight of persons struggling against minority, racist or colonial regimes and called for their treatment as POWs. This was taken up by the United Nations General Assembly a few months later, as noted above. Fourthly, it was the first time in almost two decades that a United Nations body had decided to consider the need for codifying the laws of armed conflicts. Fifthly, the United Nations commenced its very significant contribution to the development of the laws of armed conflicts. Finally, it augmented the initiative being undertaken by the International Committee of the Red Cross (ICRC) to update the Geneva Conventions. The 1968 resolution was, in retrospect, one of the most important developments in the International Year for Human Rights.
ICRC, following on from international consultations, produced two draft Additional Protocols to the four Geneva Conventions.
The first Protocol dealt with international conflicts. The second Protocol went well beyond article 3 common to the four conventions in providing rules for non-international conflicts.
The final stage of the ICRC’s work was the Geneva Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts. The first session took place between 20 February and 29 March 1974. Besides a procedural wrangle over whether or not the Provisional Revolutionary Government of South Viet Nam should be invited to participate (it was eventually not invited), the main controversy was easily that of the status of national liberation movements, in effect, those of southern Africa and the Palestine Liberation Organisation. Within a year, the Portuguese colonial Government was overthrown and the new rulers indicated their intention of dissolving Portugal’s colonial empire.
The number of liberation movements, well before the final session of the Diplomatic Conference in 1977, was suddenly reduced to the Palestine Liberation Organisation and to those in Southern Rhodesia, South Africa and Namibia. But the struggle at the Conference was highly significant for the history of national liberation.
The majority of the States Members of the United Nations wanted captured members of liberation movements to be granted POW status. This idea started at the 1968 International Conference on Human Rights and was repeated in United Nations General Assembly resolutions. This posed the question: what was the best legal method to achieve this? Apart from some procedural problems, that was the main focal point of the 1974 session of the Geneva Diplomatic Conference.
Almost all of the provisions in the third (POW) Geneva Convention apply in international conflicts. The exception is, of course, common article 3 on non-international conflicts. The logical action, therefore, would be to decree all wars of national liberation to be international conflicts. This suggestion was opposed by most Western Powers and the Conference atmosphere was so tense that it seemed to observers such as this writer that the minority Western Powers might withdraw from the Diplomatic Conference.
In retrospect, however, the debate was a useful experience. It brought out into the open the entire legal problem of wars of national liberation - an issue which had previously been debated in non-legal political gatherings, such as the United Nations General Assembly. It was a legal debate which the international community had to undertake and resolve at some point. The Diplomatic Conference was a good forum for such a debate. Also, all national liberation movements recognised by regional intergovernmental organisations (League of Arab States and Organisation of African Unity) were present. They were thus able to obtain at first hand a clear exposition of the wider legal environment in which their campaign should be conducted. There was also a further reminder (if one were needed) of the determination and solidarity of Third World nations and their allies to work for the victory of all liberation movements recognised by the League of Arab States and the Organisation of African Unity. Finally, the debate was resolved in favour of the liberation movements.
The dispute over the legal status of wars of national liberation had ramifications beyond that of the laws of armed conflicts. In essence, the dispute was over the history of colonialism.
Governmental practice, especially by Western Powers, had long shown a trend to treat wars of national liberation as international conflicts. In the eighteenth century, France aided the 13 American colonies in their fight against the United Kingdom. In the nineteenth century, the United Kingdom and Russia helped Greece in its struggle against the Ottoman (Turkish) Empire. In the First World War, President Woodrow Wilson of the United States proclaimed the doctrine of national self-determination as “an imperative principle of action which statesmen will henceforth ignore at their peril.”
Meanwhile, United Nations practice has long shown that opposition to colonialism and apartheid are matters of international concern. The United Nations Security Council has intervened, in effect, on the side of South Africa’s national liberation struggle by imposing a partial arms embargo.
In its preparatory work for the Diplomatic Conference, the International Committee of the Red Cross, in consultations with governmental experts, drafted a provision for Protocol I which it believed met United Nations requirements.
“Article 42 - New category of prisoners of war
“1. In addition to the persons mentioned in article 4 of the Third Convention, members of organised resistance movements who have fallen into the hands of the enemy are prisoners of war provided such movements belong to a Party to the conflict, even if that Party is represented by a government or an authority not recognised by the Detaining Power, and provided that such movements fulfil the following conditions:
- That they are under a command responsible to a Party to the conflict for its subordinates;
- That they distinguish themselves from the civilian population in military operations;
- That they conduct their military operations in accordance with the Conventions and the present Protocol.
2. Non-fulfilment of the aforementioned conditions by individual members of the resistance movement shall not deprive other members of the movement of the status of prisoners of war. Members of a resistance movement who violate the Conventions and the present Protocol shall, if prosecuted, enjoy the judicial guarantees provided by the Third Convention, and, even if sentenced, retain the status of prisoners of war.*
*Note: if, as many Governments wished, the Diplomatic Conference should decide to mention in the present Protocol members of movements of armed struggle for self-determination, a solution would be to include in this article a third paragraph worded as follows:
“3. In cases of armed struggle where peoples exercise their right to self-determination as guaranteed by the United Nations Charter and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, members of organised liberation movements who comply with the aforementioned conditions shall be treated as prisoners of war as long as they are detained.”
This proposal did not satisfy the majority of nations represented at the Diplomatic Conference. It was not enough merely to grant captured freedom fighters POW status as though they were fighting in an international conflict. The entire rules relating to international conflicts should apply to wars of national liberation. They eventually attained their point of view.
“Article 1 - General principles and scope of application
“1. The High Contracting Parties undertake to respect and to ensure respect for this Protocol in all circumstances.
“2. In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from dictates of public conscience.
“3. This Protocol, which supplements the Geneva Convention of 12 August 1949 for the protection of war victims, shall apply in the situations referred to in article 3 common to those Conventions.
“4. The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist 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 Co-operation among States in accordance with the Charter of the United Nations.”
The relevant portion of common article 3 to the 1949 Geneva Convention reads:
“… the present Convention shall apply to all cases of declared war or of 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.”
This was a significant breakthrough in the legal and diplomatic struggle against apartheid. It followed United Nations General Assembly resolutions, especially resolution 3103 (XXVIII). It represented the unwillingness of Western international lawyers and their governmental employers to support apartheid. It has been suggested “… that the recognition of the rights of liberation movements under the Protocol is merely a codification of an already existing rule of general international law demanding that humanitarian standards be applied.” In other words, the South African liberation movement is entitled to the legal status of an armed force fighting in an international conflict.
South Africa was represented at the first (1974) session of the Diplomatic Conference. As at all international conferences, it was heavily criticised and had few allies willing to speak publicly in its favour - although its allies were willing to resort to legalisms to assist it. Two members of the credentials committee (Senegal and Madagascar) disputed its delegation’s credentials “… since the Government of that country represents only a minority of the population and is carrying out a policy of racial discrimination contrary to the spirit and aims of the Conference.” Some of the other delegations saw their role limited only to determining the validity of the credentials of participants and not deciding who may attend the conference.
South Africa naturally opposed the amendment to Protocol I dealing with wars of national liberation. But in this author’s observations of the 1974 session, the delegation took little part in the detailed negotiations.
South Africa did not attend the 1975 session. By this time, the new Portuguese Government was following new policies towards its colonies, and the South African Government had responded to the collapse of the Portuguese colonial empire by initiating its short-lived “détente” policy. A South African official based in Geneva told this author on 19 February 1975 that South Africa had not withdrawn from the Diplomatic Conference but that with sensitive negotiations currently underway with some African leaders, the Government did not want to become embroiled in a public controversy at the Conference which could disturb the other negotiations. It gave no explanation to the Diplomatic Conference for its absence.
South Africa did not attend the third (1976) session. It did not attend the final (1977) session. It did not, therefore, sign the two Protocols. The Palestine Liberation Organisation (PLO), the Pan Africanist Congress of Azania (PAC), the African National Congress of South Africa (ANC) and the South West Africa People’s Organisation (SWAPO) did do so. The Additional Protocols are now in force for those nations that have ratified them.
South Africa is still not, as of writing, bound by the Additional Protocols. This writer has been unable to obtain any public statement on when the South African Government will become a party to the Additional Protocols. It is likely that it will refuse to do so.
South Africa is in a no-win military situation. The gathering fury of the international community may yet oblige the South African Government to back down and set a course for majority African rule. Meanwhile, the national liberation movement had no alternative but to increasingly turn to force to achieve victory. Even if the movement does not win an outright military victory, it will force Western interests to recognise that they need to change policies. The West is most unlikely to act voluntarily against the government while it has such a large financial stake in South Africa. However, if the liberation movement can jeopardise that financial stake, then the West will change sides.
With the liberation of Zimbabwe-Rhodesia, South Africa now has one of the longest and most difficult-to-patrol borders in any of the world’s combat zones. South Africa’s forces are, moreover, hindered by the comparative scope of infiltration. There are the nation’s open veldt, lack of mountains and a lack of forests. Rural guerrilla warfare could begin in a major way in the east where the hilly country of the traditional Zulu homeland backs on to Mozambique. The guerrilla struggle has at least already started:
“Umkhonto We Sizwe, or Spear of the Nation, the military wing of the banned African National Congress, a liberation movement, is crossing the Limpopo River into South Africa, caching weapons, and fighting when detected. Guerrilla incidents are on the rise in the northern Transvaal. Because of the security hazard and a lack of economic opportunity, rural whites are flocking to cities; at least 25 per cent of border-area farms are unoccupied. And the war is spreading to urban centres. An explosion in a posh shopping area in downtown Johannesburg injured several whites. Such bombings, as well as fatal shootings and arson, are increasing.”
South Africa is, then, already well advanced along the path to guerrilla warfare. While the violence is still at a comparatively low level, even the Western mass media have grudgingly been obliged to admit that it is developing.
The precise form the war will take cannot be predicted. What can be predicted, however, is that a protracted conflict is now inevitable. The South African Government could have avoided it - but decided not to do so. Apartheid policies remain as firm as ever.
Opponents of apartheid, both inside and outside South Africa, must now give far more attention to the First Additional Protocol and the four Geneva Conventions of 1949.
The Geneva Diplomatic Conference, responding to United Nations General Assembly decisions, decided that the four Geneva Conventions and the First Protocol all applied to wars of national liberation. The South African Government apparently does not accept that ruling. The Geneva-based International Committee of the Red Cross may be invited each year by the United Nations General Assembly to impress upon the South African Government that it should follow the laws of armed conflicts in combating the South African liberation movement.
Likewise, the South African liberation movement publicly may be called upon to commit itself to following the laws of armed conflicts. The liberation movement should ensure, in accordance with the laws, that its own personnel are aware of their obligations under the laws.
The Geneva Diplomatic Conference gave considerable attention to the repression of breaches of the Geneva Conventions and the First Protocol: “war crimes.” The First Protocol listed various war crimes, including (in article 85(4)(c)): “practices of apartheid and other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination.”
The specific classification of apartheid as a war crime further emphasised the opinion by the majority of Governments that the South African national liberation movement is fighting an international conflict. Moreover, the text indicates that the Diplomatic Conference considered apartheid at present to be a war crime - even though the level of conflict itself is currently low.
Greater publicity may be given to the fact that the Geneva Diplomatic Conference decided that apartheid is a war crime. All nations bound by the First Protocol may also be reminded of their duty in the opening line of the text: “The High Contracting Parties undertake to respect and to ensure respect for this Protocol in all circumstances.” Such Governments, therefore, have an obligation - whether or not South Africa ratifies the Protocol - to encourage South Africa to stop committing the war crime of apartheid.
“Mr. Mahlangu, a school student at the time of the Soweto uprisings of 1976, left South Africa for training as a freedom fighter with Umkhonto we Sizwe. He returned with two comrades in June 1977 and was captured, with
Mondy Motloung, in Johannesburg. Mr. Mahlangu was sentenced to death for the murder of the two whites, although he was not present when the shooting took place. His torture under interrogation by Captain Cronright and Lt. Divrouw - including being hurled up in the air and dropped on the floor, which the police described as killing him gradually - and his trial for murder was described to the Group by a witness. The African National Congress maintains that Mr. Mahlangu ought to be treated as a prisoner of war under the terms of the Geneva Convention of 12 August 1949, which includes armed conflict in which the people are fighting against colonial domination and alien occupation, and against racist regime in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations.”
The Geneva Diplomatic Conference has recognised that claim.
The execution by hanging of Solomon Mahlangu on 6 April 1979 illustrated the need for all governments to recognise the full implications of the First Protocol. His execution was a war crime. Governments bound by the First Protocol are obliged to ensure its respect in all circumstances.
It is timely to emphasise that the attitude of the South African Government to the laws of armed conflicts - such as their recognition of POW status - jeopardises all of South Africa’s people. The laws of armed conflicts have evolved over the centuries to protect war victims. They provide a mantle of safety for all persons in conflict situations. The potential South African conflict victims are not only the captured freedom fighters but everyone else in the country.
For the sake of all South African people, the Government should ensure that its own personnel follow the laws of armed conflicts. This would further induce the liberation movement to ensure that its own personnel do likewise - and so both sides can take steps to prevent unnecessary suffering.
The best practical way for the South African Government to prove its sincerity in wanting to stop unnecessary suffering is to guarantee captured freedom fighters POW status. It is not doing so at present out of political considerations. But this means that it is playing politics with all South African lives. This rebounds against the Government in two ways. It shows how little regard the Government really has for the South African people. It also means that people who die are treated as martyrs and it is often the case in guerrilla warfare - where winning hearts and minds is so important - that a dead martyr is more dangerous than a live POW. But the Government’s delay in grasping this fact indicates its inability to wage counter-guerrilla warfare - and shows that the liberation movement will ultimately win.
Truth is always the first casualty in a conflict. The South African Government has an efficient propaganda machine - albeit somewhat tarnished owing to the recent scandals involving Dr. C. P. Mulder. The Government is aided by the sympathy it gets from the Western-dominated international mass media.
As the guerrilla warfare gets under way, so South Africa is bound to try to devise ways of showing how well its own troops are fighting - and that the guerrillas are “terrorists,” scaring people who would allegedly prefer to be governed by the white minority Government.
During the closing stages of the Zimbabwe liberation war, Smith’s African troops, especially the Selous Scouts, were used to commit atrocities which were then blamed on the freedom fighters.
Members of the Selous Scouts and Rhodesian Special Air Services are now joining the South African Defence Force in large numbers. The Selous Scouts, founded in 1972, are credited with the highest kill-rate in the Zimbabwe war. Their recruitment in South Africa would extend the Government’s capacity for fighting the freedom fighters as well as enabling it to carry out some of Smith’s propaganda “dirty tricks” - which the Western mass media fell for.
In this connection, a special impartial investigation unit is needed. This could be part of the existing United Nations Committee structure or be a completely new body. Its task would be to carry out a constant monitoring of all war crimes committed in South Africa. It should seek information from other United Nations bodies, non-governmental organisations, such as Amnesty International and the International Committee of the Red Cross, and journalists. It should publicise its findings.
One of the main strengths of the laws of armed conflicts is that obedience to them helps a military campaign - especially one in which the prime aim is to win the hearts and minds of people.