International legal protections for combatants in the South African armed conflict.

Abstract

The African National Congress (ANC) is engaged in an armed conflict with the South African Government for control of South Africa. ANC combatants are being prosecuted under South African criminal law as rebels, a process which undermines the normative value of the criminal law because it is in conflict with popular support for the ANC. International law provides a humanitarian alternative to the criminal law. This study investigates the international legal protections available to combatants in the conflict. Lawful combatant status and prisoner of war status would only be available if the South African armed conflict was classified as international. It has been argued that the international status of the ANC, derived from the denial of self-determination to the South African people, internationalises its war against the South African Government. Attempts have been made to enforce this concept. Article 1(4) of Geneva Protocol 1 classifies armed conflicts involving a movement representing a people with a right of se If-determination against a .. racist re,gime" as international. But South Africa did not accede to Protocol 1 and the argument that it is custom fails because of insufficient international support. Nevertheless, the developing situation justifies an examination of the personal conditions required to gain protectedstatus. The conditions in Article 4 of Geneva Convention 3 (1949) are onerous, making it impracticable in South Africa. Protocol l's updated conditions are more suited to the armed conflict. The Conventions and Protocol 1 also make available procedural and substantive protections to combatants and deal with special issues particular to South Africa. The South African armed conflict can alternatively be classified as non-international. Common Article 3 of the 1949 Conventions applies because South Africa is party to them. Geneva Protocol 2 is not .applicable because South Africa is not a party to it. Unfortunately, Article 3 only applies general humanitarian principles and not protected status. To conclude, because of the inadequate means for enforcing the classification of the South African armed conflict as international and the inadequacy of the protections available under the law of non-international armed conflict, it is urged that the Government confer ex-gratia. lawful status on ANC combatants.