Related Rule
South Africa
Practice Relating to Rule 25. Medical Personnel
South Africa’s LOAC Manual (1996) provides:
Medical … personnel of the parties to a conflict, whether military or civilian, are to be respected and protected. This protection is not a personal privilege but rather a natural consequence of the rules designed to ensure respect and protection for the victims of armed conflict. Protection is accorded to medical personnel to facilitate the humanitarian tasks assigned to them; the protection is therefore limited to those circumstances in which they are carrying out these tasks exclusively.
The manual points to the distinction between permanent and auxiliary medical personnel and restates Articles 24–25 of the 1949 Geneva Convention I. 
South Africa, Presentation on the South African Approach to International Humanitarian Law, Appendix A, Chapter 4: International Humanitarian Law (The Law of Armed Conflict), National Defence Force, 1996, §§ 46–47.
South Africa’s Revised Civic Education Manual (2004) states:
62. Medical … Personnel. Medical … personnel of the parties to a conflict, whether military or civilian, are to be respected and protected. This protection is not a personal privilege but rather a natural consequence of the rules designed to ensure respect and protection for the victims of armed conflict. Protection is accorded to medical personnel to facilitate the humanitarian tasks assigned to them; the protection is therefore limited to those circumstances in which they are carrying out these tasks exclusively.
63. Two types of medical personnel are involved in military operations. They can be categorised as follows:
a. Those exclusively engaged in the search for, or the collection, transport or treatment of, wounded and sick, or employed in the prevention of disease. Staff engaged exclusively in the administration of medical units and establishments … shall be respected and protected in all circumstances.
b. Auxiliary medical personnel, specifically trained for employment, should the need arise, as hospital orderlies, nurses or auxiliary stretcher bearers, or in the search for or collection, transport or treatment of the wounded and sick, shall likewise be protected if they are carrying out these duties at the time when they come into contact with the enemy or fall into enemy hands. Auxiliary medical personnel are not protected when carrying out their normal military functions. 
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, §§ 62–63.
South Africa’s LOAC Teaching Manual (2008) states:
2.1 Basic Categories of Persons and Objects Recognised under the LOAC [law of armed conflict]
Specifically Protected Persons and Objects recognised under the LOAC
The following persons and objects fall within the specifically protected category under the LOAC:
- Medical personnel;
Basic Categories: Objects
Civilian persons, medical personnel and chaplains present in a military object or in the immediate vicinity of such an object share the risk of possible attacks.
Specifically Protected Persons and Objects
General Rule
The LOAC grants particular protection to specific categories of persons and objects[.] The reason for this special protection corresponds with the general aim of the LOAC, to wit, to allow commanders to wage war against the enemy with maximum effect, but at the same time to minimise the suffering of those who are caught up in a war without being any threat to the warring parties.
Persons who are specifically protected are persons who do not participate in hostilities and objects specifically protected are those that are not used for combat purposes. Such persons and objects are not used in attacks and cannot properly defend themselves against attacks.
Persons Who Enjoy Protection in terms of the LOAC. These persons are:
- Medical personnel and chaplains (Geneva Conventions 3 article 33 and Additional Protocol I article 43). Medical personnel are:
- Those Personnel assigned exclusively to perform medical tasks;
and
- Those personnel assigned to the administration of medical establishments and to medical transportation.
Nature of the Protection Awarded
- General Principles
- It is forbidden to attack, kill, mistreat or injure protected persons.
- There is an obligation on States (and their armed forces) to help and to care for protected persons.
- Protected persons must be protected against attacks or ill treatment by, e.g. civilians or members of the armed forces.
- Specific Provisions. Apart from the abovementioned general principles, the LOAC also contains specific provisions relating to the respective categories of protected persons and objects, which must be complied with.
Special Protection in the Military Field
- The LOAC is aimed at allowing the tasks of the following specifically protected persons and objects within the armed forces (in the widest sense) to continue independently of any military operations[:]
- Military medical services; and
- The specific medical or religious status of persons and objects in these fields deprives them of the obvious status of being a combatant or a military objective.
International Instruments
Providing for this specific protection is:
- [1949] Geneva Convention I articles 19, 24, 35, and 36.
- [1949] Geneva Convention II articles 22, 27, 36, and 37.
- [1977] Additional Protocol I articles 8 and 12.
Special Protection in the Civilian Field
- The special protection regarding protection of civilians and civilian objects is aimed at[:]
- Allowing for the normal functioning of[:]
- The civilian medical services;
Conclusion
- Persons who enjoy protection in terms of the LOAC are combatants who are hors de combat, civilians, medical and religious personnel and the dead.
2.2 Military Medical Services and Religious Personnel/objects
Military Medical Personnel and Religious Personnel
Who are “Military Medical Personnel”?
According to Additional Protocol I article 8(c), read with Geneva Convention I article 24 and Geneva Convention II articles 36 and 37, the following personnel fall under the definition of “medical personnel”:
- Medical personnel of the armed forces of a Party to the conflict exclusively employed in the search for, collection, transportation, diagnosis or treatment (including first-aid treatment) of wounded, sick and shipwrecked, or in the prevention of disease. (E.g. doctors, surgeons, dentists, chemists, orderlies, nurses, stretcher-bearers, etc). Such employment may either be permanent or temporary.
- Personnel of the armed forces of a Party to the conflict, exclusively (and directly) employed in the administration of medical units and establishments (E.g. chefs, cleaners, office staff, drivers, etc).
- Chaplains and other religious personnel attached to the armed forces, medical units or medical transports of a Party to the conflict.
- Medical auxiliary personnel of the armed forces of a Party to the conflict who are specially trained to act as hospital orderlies, nurses or auxiliary stretcher-bearers, while they are carrying out these functions.
The staff of the National Red Cross Societies and that of other legal and recognised Voluntary Aid Societies and their transportation and equipment (Geneva Convention I article 26) [a]re placed on the same footing as military medical personnel, provided that they shall be subject to military laws and regulations. Personnel of these organisations may be employed on the same duties as military medical personnel, as set out above.
Recognised societies of neutral countries may lend the assistance of their medical personnel and units to a Party to a conflict, with the prior consent of its government. Such personnel and units must be placed under the control of that Party to the conflict. The neutral Government must notify the adversary of the Party to whom the neutral State is providing the assistance and the Party who is making use of such assistance must also notify the adverse Party thereof. Such medical assistance may not be regarded [as] interference of the neutral State in the conflict. (Geneva Convention I article 27.)
Additional Protocol [I] Article 43.2 states that medical personnel and chaplains are not “combatants” even though they are members of an armed force of a Party to a conflict.
Nature of the Protection of Military Medical and Religious Personnel
- Military medical and religious personnel mentioned above are at all times entitled to protection from the use of force against them, provided that they themselves refrain from any participation in combat or hostile military action, excluding private defence. (Geneva Convention I article 24.)
Medical auxiliary personnel are only protected while actually carrying out their medical duties. (Geneva Convention I article 25.)
- Military medical and religious personnel[] are non-combatants, therefore they do not become POW [prisoners of war] when falling into the power of the enemy Party. However:
- They may be retained by the capturing party for the purpose of providing medical and religious services to POW. If such services are not required anymore, they must be released to return to their own forces.
- While they are so retained, they shall, at the very least, be entitled to the same protection as POW. (Geneva Convention I article 28.)
- Non-International Armed Conflicts. Article 9 of [the 1977] Additional Protocol II determines that in non-international armed conflicts, medical and religious personnel shall[:]
- Be respected and protected;
- Be granted all available help for the performance of their duties; and
- Not be compelled to carry out tasks that are not compatible with their humanitarian mission.
Warning: Condition before Military Medical Personnel, Establishments, Units or Transport and Military Religious Personnel can forfeit their Protection (Geneva Convention I Article 21). Even if the abovementioned loses its right to protection, the following steps must be taken before such an establishment or unit can be attacked.
- Due warning must first be given to that institution or unit that it is to lose its protection and render it liable to attack;
- A reasonable time limit must be given for the institution or unit to put an end to its harmful acts; and
- The warning must remain unheeded.
Conclusion
Military medical personnel and chaplains of the armed forces are specifically protected by the LOAC.
Military and civilian religious personnel are both specially protected by the LOAC, but are protected differently in that military religious personnel have the same status as military medical personnel and civilian religious personnel enjoy the same protection as civilians.
Military medical personnel are those persons who are exclusively (permanently or temporarily) employed in the medical tasks and support personnel such as those exclusively employed in the administration of medical units and establishments. Medical auxiliary personnel are also specifically protected while engaged in their duties.
The staff of the National Red Cross Societies and that of other legal and recognised Voluntary Aid Societies are treated the same as military medical personnel, provided that they shall be subject to the same laws and regulations. The same applies to recognised societies of neutral countries that may lend medical assistance to a Party to a conflict, with the prior consent of its government. Such personnel and units must be placed under the control of that Party to the conflict. However, their property remains private property.
Members of the medical personnel and chaplains may not renounce the rights that they have under LOAC.
Military medical personnel and religious personnel mentioned above are at all times entitled to protection from the use of force against them as long as they refrain from any hostile military action. Medical and religious personnel are non-combatants, therefore they do not become POW when falling into the power of the enemy Party. They may be retained by the capturing party for the purpose of providing medical and religious services to POW. While they are retained, they are entitled to support and assistance by the retaining Power. If such services are not required anymore, they must be released, according to specific prescripts, to return to their own forces.
Captured military medical establishments, units or vehicles are the responsibility of the captor who must care for the wounded and sick therein. The captor must also allow the captured medical personnel to continue with their duties until such time as the capturing Party assumes the responsibility therefore.
Before military medical establishments, units or transport can forfeit their protection, due warning must be given to that institution or unit that it is to lose its protection and render it liable to attack, a reasonable time limit must be given for the institution or unit to put an end to its harmful acts; and the warning must remain unheeded.
Medical and religious personnel are also protected during non-international armed conflicts where they shall be respected and protected, granted all available help for the performance of their duties and not be compelled to carry out tasks which are not compatible with their humanitarian mission.
2.3 Specifically Protected Persons and Objects under:
a) Civilian Medical Services
As seen above, it is allowed for civilian hospitals[] (and therefore also civilian medical personnel) to deal with civilian as well as military wounded, sick and shipwrecked. However, it must be remembered that the civilian and military status of the persons and objects concerned are not affected thereby. Wounded, sick and shipwrecked combatants will be protected as hors de combat personnel, while such civilians will remain protected as civilians.
It is prohibited for civilian medical personnel to renounce in part or in entirety the rights that they have under this Convention. (Article 7 of Geneva Convention I.)
Non-International Armed Conflicts. Article 9 of Additional Protocol II also applies to civilian medical and religious personnel. They shall therefore also:
- Be respected and protected; and
- Be granted all available help for the performance of their duties; and
- Not be compelled to carry out tasks that are not compatible with their humanitarian mission.
Conclusion
The LOAC extends special protection to civilian medical services and religious personnel.
The provisions governing military medical personnel, establishments and transport apply equally to civilian medical services.
Civilian medical and religious personnel are all medical and religious personnel that are not military medical personnel or chaplains of the armed forces.
Staff of civilian hospitals are those who are regularly and solely engaged in the operation and administration of civilian hospitals. They must always be respected and protected.
Civilian medical personnel shall be respected and protected. All available help must be given to them where civilian medical services are disrupted by war. Occupying Powers must assist them with the performance of their functions and may not require from them to give priority to the treatment of any person, except on medical grounds.
Civilian medical personnel shall have access to any place where their services are essential, but the relevant Party to the conflict may introduce supervisory and safety measures.
Civilian medical personnel may not renounce any of their rights under Geneva Convention I.
During non-international armed conflicts, civilian medical and religious personnel shall be respected, protected, granted all available help for the performance of their duties and not be compelled to carry out tasks which are not compatible with their humanitarian mission.
Treatment of POW
Members of the medical services and religious personnel who have been captured are not regarded as POW but enjoy nevertheless, as a minimum, all the advantages of Geneva Convention III.
Medical personnel of hospital ships and their crews shall be respected and protected and they shall not be captured as long as they serve on the hospital ships, irrespective of whether there are wounded and sick on board or not. 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 2, pp. 52–77 and 95.
[emphasis in original]
The manual also states:
- Targeting Prohibitions. It is prohibited to specifically target those possible targets which are specially protected under the Geneva Conventions and Additional Protocol I such as:
- Protected Persons. Such as wounded and sick, civilians, persons hors de combat, medical and religious personnel and journalists. 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 3, p. 184.
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 [1949] 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. 
South Africa, Supreme Court, Petane case, Judgment, 3 November 1987, pp. 2–8.
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. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, pp. 21–22.
[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. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, p. 66.
In 2011, in a statement before the UN Security Council during an open debate on children and armed conflict, made partly on behalf of the Group of Friends of Children and Armed Conflict, including South Africa, the deputy permanent representative of Canada stated:
The Friends Group is pleased with the work undertaken by the [UN] Security Council, in the last few years, in progressively strengthening the protection framework for children affected by armed conflict. …
Members of the Friends Group have reliably called on the Security Council to strengthen its protection framework even more and consistently called for all six grave violations committed against children in armed conflict to be included amongst the Security Council Resolution 1612 [of 2005] listing criteria. The Friends Group has supported a progressive approach in this regard and therefore commends the Security Council in filling an important gap in the child protection framework by including attacks against schools and hospitals as the latest trigger through the resolution it will adopt today [Resolution 1998(2011)].
For the Friends Group, a new trigger such as this not only includes in the annexes to the Secretary General’s reports on children and armed conflict those parties to armed conflict that, in contravention of applicable international law, engage in attacks against schools and hospitals, but also those who engage in threats or attacks against schoolchildren, patients, educational or medical personnel. 
South Africa, Statement by the deputy permanent representative of Canada before the UN Security Council during an open debate on children and armed conflict, made partly on behalf of the Group of Friends of Children and Armed Conflict, including South Africa, 12 July 2011.
South Africa’s LOAC Manual (1996) provides:
Medical personnel must abstain from all acts of hostility or they lose their protection. They are authorised to carry only light arms and have the right to use them only for their own defence or for that of the wounded or sick for whom they are responsible. 
South Africa, Presentation on the South African Approach to International Humanitarian Law, Appendix A, Chapter 4: International Humanitarian Law (The Law of Armed Conflict), National Defence Force, 1996, § 48. This manual is also included in Chapter 4 of the Draft Civic Education Manual of 1997.
South Africa’s Revised Civic Education Manual (2004) states:
Medical … personnel must abstain from all acts of hostility or they lose their protection. They are authorised to carry only light arms and have the right to use them only for their own defence or for that of the wounded and sick for whom they are responsible. 
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, § 64.
South Africa’s LOAC Teaching Manual (2008) states:
Military medical personnel and military religious personnel are entitled to be armed with light individual weapons for their own protection or for that of the wounded and sick in their care. ([1949] Geneva Convention I article 22, [1949] Geneva Convention II article 35 and [1977] Additional Protocol I article 28.)
Geneva Convention I article 22, provides for specific aspects which do NOT cause medical institutions or units to lose their protection:
- The Carrying or Presence of Weapons
- Medical personnel have the right to carry light weapons and may use such weapons, if necessary, in their own defence or in that of the wounded and sick in their charge.
- They must nevertheless refrain from any aggressive action and may not use force to prevent the capture of the Unit.
Conclusion
… Military medical and religious institutions, units and transportation can lose their right to protection if used to commit acts which are harmful to the enemy and which are outside their humanitarian duties. However, they do not forfeit their protection in the following instances:
- If they carry light weapons for personal protection. 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 2, pp. 62, 66–67 and 69.
[emphasis in original]
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 [1949] 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. 
South Africa, Supreme Court, Petane case, Judgment, 3 November 1987, pp. 2–8.
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. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, pp. 21–22.
[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. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, p. 66.