In this respect the appellant sought to rely upon art 75 of the Protocol while the ANC invoked articles 43 to 46 of the Geneva Conventions.Political cartoon depicting the Afghan Emir Sher Ali with his "friends" the Russian Bear and British Lion (1878).
#Domestic espionage definition trial#
The only existing issue in this respect is whether they entitled the ANC, without anything further being done, to detain the appellant as a suspected spy until the cessation of hostilities (as the ANC claimed) or whether it was obliged to afford him the benefit of a trial within a reasonable period. (I express no view on the matter.) It is common cause that the ANC in 1980 publicly subscribed to their provisions. The next question that arises is whether the appellant’s detention continued to be lawful … The parties accepted that the provisions of the Geneva Conventions of 1949 and Additional Protocol I of 1977 (“the Protocol”) were applicable to the conflict between the ANC and the South African Government and regulated the appellant’s detention, despite the doubts expressed in this regard in Azanian Peoples Organisation (AZAPO) & Others v President of the Republic of South Africa & Others 1996 (4) SA 671 (CC) at 689 C - D. 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. Here and there someone says that it may one day come about. No writer has been cited who supports this proposition. 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. 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 and the ANC 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. 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. 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 “raist regime” in the exercise of their “right of self-determination”.
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If so, it is argued that it would have been incorporated into South African law.
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Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law.
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South Africa is one of the countries which has not acceded to Protocol I.
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