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TRC Final Report
Page Number (Original) 73
Paragraph Numbers 91 to 101
Armed conflict between combatants
91 The political conflicts of the past were not only of a ‘civilian’ nature. Several of the political groupings had an armed wing. The state used its armed forces to put down resistance and to engage in military actions in the southern African region. The Commission had particular difficulty in attempting to define and reach consensus on its mandate in this respect. Some argued that all killed and injured combatants should be included as victims of gross human rights violations. Others wanted to maintain a distinction between those defending the apartheid state and those seeking to bring it down. It was noted that members of the armed forces involved in these combat situations did not expect to be treated as victims of gross violations of human rights. This was illustrated in the submissions of political parties such as the NP and the ANC, which did not identify their members killed in combat as victims. In the end, the Commission decided to follow the guidelines provided by the body of norms and rules contained in international humanitarian law.
92 Armed conflicts between clearly identified combatants thus provided the only exception to the Commission’s position that victims of gross violations of human rights should include all who were killed, tortured (and so on) through politically-motivated actions within the mandated period.
93 With regard to specific aspects of the armed conflicts referred to above, the Commission was guided by international humanitarian law, particularly as contained in the four Geneva Conventions of 1949 and the two Additional Protocols of 1977. Since the Commission was not a tribunal and therefore not required to pass legal judgements, only the basic concepts and principles underlying these laws were taken into consideration.
94 International humanitarian law attempts to provide as much protection as possible to those faced with the harsh realities of armed conflicts, irrespective of what caused them. It therefore places limits on the means and methods used in warfare, declaring certain acts impermissible, while other acts, even some of those involving killing, are not regarded as violations. To understand this distinction, the two essential concepts of ‘combatant’ and ‘protected person’ need to be clarified.
95 Article 43 (paragraphs 1 and 2) of Additional Protocol 1 of 1977 defines combatant as follows:
The armed forces of a Party to the conflict consist of all organised armed forces, groups, and units that are under a command responsible to that Party for the conduct of its subordinates...
Members of the armed forces of a Party to the conflict are combatants; that is to say, they have the right to participate directly in hostilities.
96 Protected persons include the following categories of persons: wounded, sick and shipwrecked members of the armed forces and civilians14; prisoners of war15; civilians, including those interned and those on the territory of the enemy or in occupied territories.16
97 The basic principle is that combatants have the right to participate directly in hostilities. This does not mean that combatants have an unlimited right to kill. What it does mean is that the combatant is allowed to use (lethal) force against enemy combatants in the process of trying to subdue the enemy as quickly as possible. It remains preferable that these enemy combatants should be captured or wounded and not physically destroyed. But deaths do occur in war; that is its inherent evil. While the laws of war may not prohibit such deaths, they are a source of profound moral regret. Combatants who comply with the restrictions imposed by the laws of war are not, therefore, personally liable for the consequences of their acts. Thus, the laws regulating justness in war provide no prohibition on certain acts of violence committed by any party to an armed conflict, regardless of the justness of that party’s cause.
98 However, when a combatant uses force in an armed conflict against a protected person – that is someone who does not or who can no longer use force and thus cannot defend him or herself – such acts break international humanitarian law and those responsible must be held accountable. The laws of war provide minimum protections that apply in all armed conflicts. These protections are found in Common Article 3 of the four 1949 Geneva Conventions, which reads:
Persons taking no active part in the hostilities, including members of the armed forces who have laid down their arms and those placed hors de combat [outside combat] by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any similar criteria.
99 Historically, when such violations have occurred in an international, as opposed to internal, armed conflict they constitute ‘grave breaches’17 which may be prosecuted by any state. This distinction between international and internal armed conflicts is less relevant today, as the laws of war have evolved to regulate more closely the use of force in all situations of armed conflict.
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:
(a) violence to the life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples. (See also Protocol I, art 75).
100 It is, furthermore, very important to note that the Geneva Conventions, both in their terms and as they have been interpreted, are inclusive in the protections they offer. In other words, if there is doubt about whether a particular person is entitled to certain protections provided by the Conventions, then it is presumed that such an individual should be protected. (See Protocol I, art 45.1, 50.1).
101 It must also be emphasised that the concepts of combatant and protected person are not necessarily opposites. When a combatant is wounded or surrenders, he or she becomes a protected person without losing combatant status. In other words, in order to decide whether someone was killed or injured as a combatant, two questions must be asked: first, was the person a member of an organised or regular armed force, and second, was the person in or out of combat?14 Geneva Convention I,II,IV, art 13 15 Geneva Convention III, art 4. 16 Geneva Convention IV, art 47; Protocol I, articles 48-50. At 32, ‘Civilians’ are those who are not ‘combatants’. 17 Geneva Convention I, art 50; Protocol I, art 85. ‘Grave breaches’ include the following acts against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, wilfully causing great suffering or serious injury to body or health.