A member of the military or police shall be imprisoned for a period of no less than eight and no more than 15 years if he or she in the context of an international or non-international armed conflict:. Directs an attack by any means in the knowledge that such an attack will cause incidental loss of life or injury to civilians or damage to civilian objects which would be excessive in relation to the concrete military advantage anticipated.
Code of Military and Police Justice , , Article 95 3. This article is no longer in force. Along with certain other articles in this legislation, it was declared unconstitutional by the Constitutional Court en banc decision for case file No. Incidental collateral damage : Unintentional consequence of military operations which may result in harming civilians or damaging civilian objects and whose qualification as excessive can be determined by assessing military necessity and proportionality in relation to the concrete and direct military advantage anticipated.
The following principles are recognized by the norms of international humanitarian law as applying before, during and after the use of force:.
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Proportionality … authorizes a military operation when it is foreseeable that it will not cause incidental injury to the civilian population or incidental damage to civilian objects that would be excessive in relation to the anticipated concrete military advantage. A member of the military or the police shall be punished with deprivation of liberty of not less than six years and not more than twenty-five years if, in a state of emergency and when the Armed Forces assume control of the internal order, he or she:.
Carries out an attack by any means and in a way which may surely be expected to cause incidental loss of life or injury to civilians or damage to civilian objects that is disproportionate to the concrete military advantage anticipated. Military and Police Criminal Code , , Article 91 3. ICC Act , , Article 13 1 3. A war crime is one of the following acts, committed during armed conflicts against persons or property protected under the Geneva Conventions of 12 August and its Additional Protocols I and II of 8 June Shall be punished by one of the following penalties any person having committed one of the war crimes provided for in Article 8 of this law:.
Penal Code , , as amended in , Article b 3. Criminal Code , , Article 1. Geneva Conventions Act , , Section 2 1 e. Implementation of the Geneva Conventions Act , , Section 5 1 — 2 e. Penal Code , , Article 1.
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Accordingly, it applies to official members of the armed forces, except for those persons in administrative roles whose status as military personnel is suspended and students undergoing military training. This status applies to members of the reserves and aspirants when they are incorporated into the armed forces ….
The essential rules governing the conduct of military personnel are the following:. To be prepared to face with courage, self-denial and a spirit of service, situations of combat, in all missions of the Armed Forces and situations of crisis, conflict or war in which they carry out or exercise their functions. To use force in a gradual and proportionate way in the legitimate use of force, in accordance with the rules of engagement established for the operation participated in. Articles — apply in the context of international armed conflicts, including in situations of occupation, and, if the nature of the offence does not exclude it, in the context of non-international armed conflicts.
Articles d — j apply in the context of international armed conflicts, including in situations of occupation, and, if the nature of the offence does not exclude it, in the context of non-international armed conflicts. Penal Code , , taking into account amendments entered into force up to , Articles b and g 1 a. Geneva Conventions Act , , as amended in , Section 1 1.
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Persons and objects affected by the war crimes set out in the present provision are persons and objects which international law protects in international or internal armed conflict. Intentionally launching an attack which may be expected to cause incidental loss of life or injury to civilians or persons or damage to civilian objects … which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated. National Case-law. Military Junta Case , Judgment, 9 December In , in the Constitutional Case No. Indeed, … the principle of proportionality which, based on the fact that an armed conflict necessarily produces unwanted effects on the civilian population and civilian objects, prohibits military actions that predictably and intentionally result in deaths or wounded among the civilian population or harm to civilian property which would be excessive in relation to the concrete and direct military advantage sought.
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Constitutional Case No. The Federal Prosecutor General stated:. Fuel Tankers case , Decision, 16 April , p. An attack under Art. While Additional Protocol I only applies to international armed conflicts, its definition of attack also applies to non-international armed conflicts under customary international law … The dropping of two pound bombs constituted an act of violence by military means.
According to the credible statement by Colonel Oberst Klein, he definitely anticipated that the bomb attack would solely hit the fuel tankers, up to 70 Taliban located in the proximity of the fuel tankers on the sand bank and the two towing vehicles standing next to the fuel tankers. These were not civilians or civilian objects in the sense of the [International Crimes] Code. Fuel Tankers case , Decision, 16 April , pp. Even considering the fact that the bombing killed civilians to be protected under the international law of armed conflict, the order to attack was lawful under international law.
The reason for this is not that civilians consciously approached the fuel tankers which were surrounded by armed Taliban. However, from a legal perspective the protection of international humanitarian law applies irrespective of whether civilians know about the danger of such an attack or of whether they found themselves at the place of military confrontations out of their free will or under coercion … Yet, the protection of civilians does not apply in an unlimited way.
This prohibition of excessiveness is a specific military proportionality clause which cannot be compared to the effects of the prohibition of excess under the law that applies in times of peace. The standard of prohibiting excess first requires a military advantage of a tactical nature …, such as the destruction or weakening of hostile troops or their means of combat, or territorial gain … Collateral damage such as the death of civilians is not out of proportion merely because the military advantage is only a short-term advantage which does not decide the conflict.
In the present case the bombing pursued to military goals, namely the destruction of the fuel tankers robbed by the Taliban and of the fuel as well as the killing of the Taliban, including not least the high-level regional commander of the insurgents. The anticipated civilian collateral damages are also to be assessed from the perspective of the attacker at the time of the attack, rather than with hindsight according to the actual unfolding of events see also the wording of Art.
Colonel Oberst Klein did not have to accept the danger of the fuel tankers or the fuel being retrieved by the Taliban … The international law of armed conflict requires that in case of doubt a person is to be considered a civilian see Art. However, there is no such case of doubt if — as is the case here — there are sufficient indications, considering the concrete circumstances, that the persons concerned are a legitimate objective of a military attack; absolute certainty is not necessary ….
Even if the killing of several dozen civilians would have had to be anticipated which is assumed here for the sake of the argument , from a tactical-military perspective this would not have been out of proportion to the anticipated military advantages. Both the destruction of the fuel tankers and the destruction of high-level Taliban had a military importance which is not to be underestimated, not least because of the thereby considerably reduced risk of attacks by the Taliban against own troops and civilians.
There is thus no excess. The principle of proportionality is a general principle in law. It is part of our legal conceptualization of human rights … It is an important component of customary international law … It is an integral part of the law of self defense. It is a substantive component in protection of civilians in situations of armed conflict … It is a central part of the law of belligerent occupation … In a long list of judgments, the Supreme Court has examined the authority of the military commander in the area according to the standards of proportionality.
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IT The principle of proportionality arises when the military operation is directed toward combatants and military objectives, or against civilians at such time as they are taking a direct part in hostilities, yet civilians are also harmed. In all those situations, and in other similar ones, the rule is that the harm to the innocent civilians must fulfill, inter alia, the requirements of the principle of proportionality.
The principle of proportionality applies in every case in which civilians are harmed at such time as they are not taking a direct part in hostilities. Judge Higgins pointed that out in the Legality of Nuclear Weapons case:. Among others, the following types of attacks are to be considered as indiscriminate:. However, the laws of armed conflict include additional components, which are also an integral part of the theoretical principle of proportionality in the wider sense.
The possibility of concentrating that law into the legal category to which it belongs, while formulating a comprehensive doctrine of proportionality, as is common in the internal law of many states, should be considered. That cannot be examined in the framework of the petition before us. We shall concentrate upon the aspect of proportionality which is accepted, without exception, as relevant to the subject under discussion. 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 He has also been indicted on three counts of attempted murder.
By the terms of [the Additional] Protocol I to the  Geneva Conventions the accused was entitled to be treated as a prisoner-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.
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On 12 August there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. South Africa was among the nations which concluded the treaties. 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. 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. 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.
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 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.
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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.
This position should be compared to the 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 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]. 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.