Related Rule
South Africa
Practice Relating to Rule 89. Violence to Life
South Africa’s LOAC Manual (1996) provides that “wilful killing” is a grave breach of the 1949 Geneva Conventions. 
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, § 40.
According to South Africa’s Revised Civic Education Manual (2004), “wilful killing … of any persons” is a grave breach of the law of armed conflict and a war crime. 
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, § 57.
South Africa’s LOAC Teaching Manual (2008) states:
1.2 Reasons for compliance with LOAC [law of armed conflict] and basic principles thereof.
Prohibited Acts against Persons not taking an Active Part in Armed Conflicts
- Specific Rules
- Action that results in the death or physical suffering of protected persons is prohibited. This includes murder, torture, corporal punishment, mutilation, unnecessary medical experiments and any other form of brutality.
1.3 Relationship between LOAC and Human Rights Law and Fundamental Protection Provided under LOAC.
Comparison between Human Rights Law and the LOAC
LOAC
The right to life is protected under certain conditions. Combatants may be killed in combat as long as unnecessary cruel methods are not used. No minimum force requirement exists.
Certain fundamental rights under Human Rights Law may never be violated, but others may be restricted or derogated from under certain conditions. No provision is made in the LOAC for derogation of rights offered under common article 3 of the Geneva Conventions.
Specific Areas that are Subject to Fundamental Protection
- Brutal Attacks on Lives and Health
- The lives, health and physical well being of protected persons, including combatants hors de combat, are generally protected.
- This protection manifests in the fundamental and absolute prohibitions against murder, torture, corporal punishment and mutilation.
Conclusion
- Specific areas of fundamental protection are … lives and health of all persons (prohibitions against murder, …) …
- Generally speaking, with regards to the enemy in an armed conflict, there is no limitation regarding the use of military force, subject to not using means and methods of warfare that cause unnecessary suffering to the enemy.
1.4 Different Types of armed Conflict and those bound by LOAC
Current Op[]inio Juris on Common Article 3 [of the 1949] Geneva Conventions. This article determines that, in the case of armed conflicts not of an international character, each Party to the conflict shall be bound to apply certain minimum rules. Although originally written for situations of non-international armed conflict, the current legal opinion is that its contents are so fundamental that it is applicable in both international and non-international armed conflicts. The minimum rules contained in Common article 3 Geneva Conventions are the following:
- Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, …
– To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
- Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture[.] 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 1, pp. 13, 17–18, 21–25, 26 and 29.
The manual also states:
2.3 Specifically Protected Persons and Objects …
d. Wounded, sick, shipwrecked, the dead and missing.
General Treatment of Wounded and Sick (Geneva [C]onvention I Article 12)
- Wounded and sick who no longer take part or can no longer take part in hostilities must be respected and protected in all circumstances.
- Any attempts upon their lives, or violence to their persons, are strictly prohibited, in particular they shall not be murdered or exterminated or subjected to torture or to biological experiments.
2.4 Specifically Protected Persons and Objects:
a. Civilians
[1949] Geneva Convention IV articles 28 to 34 grant further protection to civilians. These articles determine the following:
- It is prohibited to physically maltreat or exterminate protected persons through murder, torture, corporal punishment, mutilation or any other measures of brutality.
Protection of protected persons entails the following:
- It is prohibited to physically maltreat or exterminate protected persons through murder, torture, corporal punishment, mutilation or any other measures of brutality.
2.7 Special Protection: Occupied Territories
The following prohibitions exist regarding conduct in occupied territories (Geneva Convention IV articles 31 to 34):
- Causing the physical suffering or extermination of protected persons: murder, torture, corporal punishment, mutilation or any other measures of brutality whether applied by civilian or military agents. 
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. 72, 102, 104, 112, 117, 124 and 155–156.
The manual also states:
4.4 Internal and Non-international armed conflict
The difference in approach between International Human Rights Law and the LOAC could be indicated by the following:
Human Rights Law
- Right to life is protected, except in cases of private (self) defence.
LOAC
- Right to life is protected under certain conditions – combatants may lawfully be killed in combat
High Intensity Internal Conflict (Civil War)
In this type of internal armed conflict common article 3 to the [1949] Geneva Conventions and [the 1977 Additional] Protocol II apply.
These laws provide general protection to:
- Persons taking no part in the hostilities, including members of the armed forces who have laid down their weapons; and
- Persons placed hors do combat (“out of combat”) through sickness, wounds, detention or any other cause.
Common article 3 to the Geneva Conventions prohibits the following actions:
- Violence to life and person, in particular murder, mutilation, cruel treatment and torture[.] 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 4, pp. 231–233.
The manual further states:
5.1 War Crimes and Grave Breaches of the LOAC
- Grave Breaches of the LOAC
- [1949] Geneva Convention III article 130 and Geneva Convention IV article 147 determine that the following acts are grave breaches:
- Wilful killing[.] 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 5, p. 236.
South Africa’s Constitution (1996), as amended to 2003, states:
11. Life.
- Everyone has the right to life.
37. States of emergency.
(1) A state of emergency may be declared only in terms of an Act of Parliament and only when –
(a) the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; …
(5) No Act of Parliament that authorises a declaration of a state of emergency, and no legislation enacted or other action taken in consequence of a declaration may permit or authorise –
(c) any derogation from a section mentioned in column 1 of the Table of Non-Derogable Rights, to the extent indicated opposite that section in column 3 of the Table. 
South Africa, Constitution, 1996, as amended to 2003, Sections 11, 37(1)(a) and (5)(c).
In the “Table of Non-Derogable Rights”, the Constitution includes section 11, entitled “Life”, and states that the right is protected “[e]ntirely”. 
South Africa, Constitution, 1996, as amended to 2003, Section 37.
South Africa’s ICC Act (2002) reproduces the crimes listed in the 1998 ICC Statute, including genocide by “killing members of the group”, murder as a crime against humanity, as well as the war crimes of “wilful killing” of a person protected under the 1949 Geneva Conventions in international armed conflicts. The Act also reproduces war crimes listed in the 1998 ICC Statute regarding non-international armed conflicts, including “violence to life and person, in particular murder” of “persons taking no active part in the hostilities” and “the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognised as indispensable”. 
South Africa, ICC Act, 2002, Schedule 1, Part 1, § (a), Part 2, § 1(a), and Part 3, §§ (a)(i), (c)(i) and (c)(iv).
South Africa’s Implementation of the Geneva Conventions Act (2012) states: “A protected prisoner of war who is in the custody of the South African National Defence Force must be granted the protection of the [1949] Third [Geneva] Convention or the [1949] Fourth [Geneva] Convention, as the case may be.” 
South Africa, Implementation of the Geneva Conventions Act, 2012, Section 12(2).
The Act defines a “protected prisoner of war” as a “person protected by the Third Convention or a person who is protected as a prisoner of war under [the 1977 Additional] Protocol I”. 
South Africa, Implementation of the Geneva Conventions Act, 2012, Section 1.
The Act also states:
5. Breach of Conventions and penalties
(1) Any person who, whether within or outside the Republic, commits a grave breach of the [1949 Geneva] Conventions, is guilty of an offence.
(2) For the purposes of subsection (1), “a grave breach” means –
(a) a grave breach referred to in Article 50 of the First Convention;
(b) a grave breach referred to in Article 51 of the Second Convention;
(c) a grave breach referred to in Article 130 of the Third Convention;
(d) a grave breach referred to in Article 147 of the Fourth Convention. 
South Africa, Implementation of the Geneva Conventions Act, 2012, Section 5(1)–(2).
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 its judgment in the Basson II case in 2005, South Africa’s Constitutional Court stated:
There can be no doubt that the use of instruments of state to murder captives long after resistance had ceased would in the 1980s, as before and after, have grossly transgressed even the most minimal standards of international humanitarian law. 
South Africa, Constitutional Court, Basson II case¸ Judgment, 9 September 2005, § 179.
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 its report on “gross violations of human rights” committed between 1960 and 1993, South Africa’s Truth and Reconciliation Commission stated:
Those combatants who were killed or seriously injured while they were unarmed or out of combat, executed after they had been captured, or wounded when they clearly could have been arrested were held to be victims of gross violations of human rights, and those responsible were held accountable. 
South Africa, Truth and Reconciliation Commission Report, 1998, Vol. 1, p. 76, § 102.