Andreas O’Shea
The Mail & Gaurdian has acted as the forum for the beginnings of a much-needed debate on the legitimacy of the process of granting amnesty from criminal and civil liability to those that have carried out gross violations of human rights.
The process was challenged by the Azanian People’s Organisation (Azapo) in the Constitutional Court on the grounds that it was inconsistent with Section 22 of the Constitution, which provides that a person shall have a right to have judicial disputes settled before a court of law, and international humanitarian law, which provides for a state obligation to punish those that commit grave breaches of humanitarian law.
Serjeant at the Bar was not entirely fair or accurate in asserting that the Constitutional Court, in its decision in Azapo versus the President of the Republic of South Africa, had stated “that international law is irrelevant to the process of determining constitutionality” (M&G August 23 to 29).
Constitutional Court Deputy President Ismail Mahomed clearly acknowledged a duty to “have regard to international law” and did so, albeit in a cursory fashion.
Nor was DM Davis right to describe the judgments of Judge Mahomed and fellow Constitutional Court Judge John Didcott as “probably the two most moving, eloquent and compelling judgments provided by the court to date” (M&G September 6 to 12).
There are serious deficiencies in the depth of analysis of the relevant provisions of international law which make the judgments not the best pieces of legal reasoning in the court’s short but eventful history.
Firstly, the court makes no reference to the most central provision to the question which is contained in Article 3 to the Geneva Conventions. Judge Mahomed correctly indicates that the conventions together with their additional protocols, make a distinction between international armed conflicts between states and internal conflicts in the territory of one state. He then wrongly states that the obligation to prosecute contained in the Geneva Conventions only applies to international conflicts.
It is true that the protocols which apply to internal armed conflicts contain no obligation to prosecute, but the Geneva Conventions which do contain such an obligation also provide for certain minimum standards of treatment of the parties to an internal armed conflict.
The judgment was deficient in not directly addressing the difficult question of whether Article 3 applies to the situation in South Africa. This depends on whether the conflict in South Africa constituted “an armed conflict not of an international character” within the meaning of Article 3.
Secondly, although the court had regard to international humanitarian law, it made no reference to international human rights law which formed the principle influence behind our new Bill of Rights.
Section 22 of the Constitution is comparable to similar provisions in the American Convention on Human Rights and the American Declaration on the Rights and Duties of Man which formed the basis of a decision of the inter-American Commission that Uruguay’s amnesty provisions were inconsistent with international human rights law.
Andreas O’Shea lectures in international law at the University of Durban-Westville