Practice Relating to Rule 144. Ensuring Respect for International Humanitarian Law Erga Omnes
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the  Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed.
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus
and/or opinio juris
have not been met. See Petane
[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus
has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris
In 2010, in a statement at the Tenth Annual Regional Seminar on the Implementation of International Humanitarian Law in Pretoria, South Africa’s Deputy Minister of the Department of International Relations and Cooperation stated:
I am convinced that this seminar will contribute to Africa’s ongoing efforts to develop a culture of respect for non-combatants and for prisoners of, and persons affected by war. Discussions and debate need to be followed by proper implementation of IHL and its instruments. Following from the implementation of IHL, we should also continue to publicly deplore any violations of International Human Rights and Humanitarian Law, and also bring to justice the perpetrators thereof.
I am also convinced that effective implementation of IHL enhances a rules-based international system, which directly ensures the protection of the peoples of the world against breaches of IHL and impunity, and ultimately contributes to the creation of a better world for all.
In view of this argument, I am sure you will agree that the region should also equally prioritise the implementation of IHL and its relevant instruments. We therefore need to ensure that all relevant role-players are properly sensitised to and advised on the importance of IHL, not only during times of conflict, but especially in underlining and supporting the very essence of our socio-economic upliftment by creating a conducive environment for lasting peace, security and stability.
In 2011, in an opening statement at the Eleventh Annual Regional Seminar on the Implementation of International Humanitarian Law in Pretoria, South Africa’s Deputy Minister of International Relations and Cooperation stated:
Member States on the African continent have shown a steady support for ratifying international instruments pertaining to IHL. However, we all acknowledge that more can and should be done. In this regard, I remain convinced that the effective implementation of IHL enhances a rules-based international system, which directly ensures the protection of civilians against breaches of IHL and impunity, and ultimately contributes to the creation of a better world for all. We therefore need to ensure that all relevant role-players are properly sensitised to and advised about the importance of IHL, not only during times of conflict, but also during times of peace. Lastly, we should also continue to publicly express our dissatisfaction about serious violations of International Human Rights and Humanitarian Law and remain unwavering in our resolve to bring to justice the perpetrators thereof.
Dr [Kellenberger], President of the ICRC highlighted in a statement in 2009 during the commemoration of the 60th Anniversary of [the 1949] Geneva Convention[s], that the polarisation of international relations and the humanitarian consequences of what has been referred to as the “global war on terror”, has posed a huge challenge for proponents of IHL. This, and the proliferation and fragmentation of non-state armed groups, and the fact that some of them reject the premises of IHL, remains a challenge today, particularly as IHL is tested as an adequate legal framework for the protection of victims of armed conflict.
Dr [Kellenberger] finally concluded that the essential spirit of the Geneva Convention – to uphold human life and dignity even in the midst of armed conflict – is as important now as it was more than 60 years ago. It is a sentiment that the South African Government still shares and I also believe it is something that you as participants also believe in, hence your participation here today. We should remain committed to the promotion of the ideals and principles contained in international humanitarian law, as this is in the interest of all of us.
In 2012, in an opening statement at the Twelfth Annual Regional Seminar on the Implementation of International Humanitarian Law in Pretoria, South Africa’s Deputy Minister of International Relations and Cooperation stated:
I believe that there is a need to operationalise the relevant structures of the AU [African Union] and SADC [Southern African Development Community] to reflect on the effective implementation of IHL in the continent. As member states would recall, the SADC Strategic Indicative Plan of the Organ (SIPO) and the Constitutive Act of the AU make provisions for the strengthening of IHL thus a need to develop a uniform continental norms and standards for maximum protection of civilians. As a continent we should be in the position to draw from the international instruments such as the 1949 Geneva Conventions and their  Additional Protocols which provide a solid foundation around the Responsibility to Protect (R2P)[.]
In 2012, in a speech at the South African Institute of International Affairs entitled “South Africa and the United Nations Security Council: Promoting Peace in the Middle East and North Africa”, South Africa’s Deputy Minister of International Relations and Cooperation stated:
Turning to the dire situation in Syria, South Africa deplores the escalating violence and continued massacres of civilians. The increase in the levels of violence by both sides, especially the use of heavy weapons and aircraft in attacking civilian populated areas, is shocking. South Africa condemns these deplorable acts.
The Human Rights Council mandated International Independent Commission on Syria, which investigated the deteriorating human rights situation in Syria, recently released a report which clearly states that the intensity and duration of the conflict, coupled with the increased organization and capabilities of the organized opposition, has escalated the conflict to a civil war. … Given the nature of the conflict and the conclusions by the Commission, it is clear that all parties to the conflict are in the logic of war, and that the crisis fulfils the international requirements for civil war. Both sides therefore have obligations under international humanitarian law. We also reiterate that all those in violation of international law and international humanitarian law should be held accountable.
In 2012, during the debate on the 1949 Geneva Conventions and their 1977 Additional Protocols in the Sixth Committee of the UN General Assembly, a statement of the delegation of South Africa was summarized by the Sixth Committee in its press release as follows:
[T]he need for States to respect international humanitarian law, whether in international or non-international armed conflict, had clearly been demonstrated throughout the previous century and in current times, as well. South Africa, this year, had incorporated the four  Geneva Conventions and its two [1977 Additional P]rotocols into domestic legislation.
[South Africa] strongly supported the efforts of the ICRC to strengthen compliance with international humanitarian law. Such support was exemplified by South Africa’s hosting the annual ICRC international humanitarian law seminar for the Southern African Development Community and co-hosting the upcoming regional conference for Africa, aimed to protect persons deprived of their liberty during non-armed conflicts
Through its mission in Geneva, … South Africa was also chairing the Open-ended Intergovernmental Working Group, with a mandate to consider the possibility of elaborating an international regulatory framework on the activities of private military and security companies. However, [South Africa] was concerned about the role mercenaries, private military and security companies had in undermining compliance with international humanitarian law during armed conflicts. To that end, South Africa had adopted domestic legislation to address the problem.
In 2013, in a statement before the UN Security Council during a debate on children and armed conflict, made on behalf of the Friends of Children and Armed Conflict, including South Africa, the permanent representative of Canada stated:
The Friends further urge relevant Member States to allow for dialogue between the United Nations and non-state actors to influence them to cease violations against children and conclude and implement action plans to this end …
The Friends reiterate… [their] call for the [UN Security] Council to ensure that grave violations against children trigger the imposition of sanctions in all relevant sanctions committees[.]
In 2013, in a statement before the UN Security Council during an open debate on the protection of civilians in armed conflict, made on behalf of the members of the Human Security Network and on behalf of South Africa as an observer, the deputy permanent representative of Chile stated:
Despite the unrelenting efforts of the international community, civilians continue to account for the majority of casualties in armed conflicts. … The Human Security Network remains concerned by the difficulties in taking action to ensure the protection of civilians in Syria. The current debate provides an opportunity to examine the most pressing aspects of the issue, in particular (a) the compliance by parties to conflict with international humanitarian and human rights law in order to guarantee protection of civilians and, among them, the most vulnerable groups, such as women and children, (b) to ensure full implementation of protection mandates by peacekeeping and other relevant missions and, (c) to explore ways to bolster accountability for violations of international humanitarian and human rights law. In this regard, the Human Security Network welcomes the briefing by the Independent International Commission of Inquiry to the General Assembly held last July.
It is true that a lack of accountability and justice incites perpetrators to continue their atrocious acts. As the last report of the Secretary General underscored, the role of the Security Council is crucial in encouraging and assisting States in their efforts to combat impunity and reinforce accountability; however it is the States themselves that bear the primary responsibility to ensure and respect the human rights of individuals within their territory and to protect their populations from mass atrocities. Against this backdrop, we stress the importance of Commissions of Inquiry and fact finding missions which can substantiate alleged violations, thus opening the way to a possible referral to the International Criminal Court.