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Angola: A case study in the challenges of achieving peace and the question of amnesty or prosecution of war crimes in mixed armed conflicts1

Published online by Cambridge University Press:  17 February 2009

José Doria
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On 22 February 2002, Jonas Malheiro Savimbi, who led the UNITA rebel movement during the bloody armed conflict in Angola and who had battled to take power by force since Angola's independence from Portugal in 1975, was killed in a gun battle with the Angolan Army. During the Cold War, Savimbi was a proxy for the United States against the then-Marxist government of Angola. But after the end of the Cold War, he lost international support for rejecting peace efforts. He was accused of perpetuating a bloody internal conflict to advance his own interests and was exposed to international sanctions. Meanwhile, the government of President José Eduardo dos Santos moved closer to the United States.

The 27-year-long armed conflict is believed to have killed approximately one million people and driven four million others from their homes, creating a humanitarian crisis. In addition, the conflict destroyed almost all of the country's infrastructure, and effectively disrupted every effort by the government to start the long desired national reconstruction after independence, and the building of prosperity for the nation's children.

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Articles
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Yearbook of International Humanitarian Law , Volume 5 , December 2002 , pp. 3 - 60
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Copyright © T.M.C. Asser Instituut and the Authors 2002

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References

3. ‘UNITA’ is the Portuguese acronym for ‘National Union for the Total Independence of Angola’ (União Nacional para a Independência Total de Angola). It was founded in 1966 by the late Mr Jonas Savimbi.

4. With a surface area of 1,246,700 sq. km (equal to the combined territory of France, Germany, Spain and Portugal), Angola is situated in the tropical zone of southwestern Africa. It shares borders with Congo (Brazzaville) to the north, with the Democratic Republic of Congo to the north and east, with Zambia in the East and with Namibia to the south. In the west, the Atlantic Ocean coast extends for 1,650 km. The land border stretches for 4,827 km. The population is estimated at 12 million, mainly of the Bantu ethno-linguistic group of Africa which is believed emigrated here from central Africa in the first millennium BC. The eight major Bantu ethno-linguistic subgroups living in Angola are: Bakongo, Ambunbu, Lunda-tchokwe, Ovimbundu, Nganguela, Herero, Nhaneka-Humbi and Ambo. One major non-Bantu ethno-linguistic group in Angola is the Khoisan. These groups settled here over the ages and founded Kingdoms, such as the Kongo, Pungo-Andongo, Lunda, Bailundo and others. The Portuguese first arrived in the territory that is now Angola in 1482, opening a period of trade relations with the various Angolan Kingdoms. These relations were strengthened with the arrival a century later in 1575 of another hundred Portuguese families to settle in what is nowadays Luanda (the capital city). See generally about the history of Portugal in Angola: Bender, G.J., Angola under the Portuguese — The Myth and the Reality (London, Heinemman 1978)Google Scholar; Wheeler, D.L., Pélissier, R., Angola (London, Pall Mall Press 1971)Google Scholar.

5. See Editorial, ‘Jonas Savimbi morre em combate’, Jornal de Angola (23 02 2002)Google Scholar. See also Dynes, M., ‘Hope for Peace in Angola After Savimbi Death Report’, The Times (London) (23 02 2002)Google Scholar.

6. See Blondin Beye, A., ‘Le Processus de Rétablissement et de Maintien de la Paix en Angola’, 5 African YbIL (1997) p. 3Google Scholar; See also Wahid Dahmane, F., ‘Les mesures prises par le Conseil de Sécurité contre les entites non-étatiques’, 11 African JI & CL (1999) p. 227Google Scholar.

7. In 1993, the United States recognised the government of Angola, 18 years after its independence. See Nash, M. (Leich), ‘Recognition of Governments — United States-Angola’, 87 AJIL (1993) p. 595Google Scholar.

8. See Interim Report of the UN Secretary-General on the United Nations Mission in Angola, UN Doc. S/2002/1353 (2002).

9. Editorial, ‘Death of a Warlord’, The Times (London, 25 02 2002) at p. 46Google Scholar.

10. Memorandum de Entendimento Complementer ao Protocolo de Lusaka Para a Cessação das Hostilidades e Resolução das Demais Questões Militares Pendentes nos Termos do Protocolo de Lusaka, 4 Abril 2002 (hereinafter, Luena Memorandum) UN Doc. S/2002/483 (2002). For a detailed account of the Luena Memorandum see infra Section 5.

11. See Protocolo de Lusaka, 21 de Novembro de 1994 (hereinafter, Lusaka Protocol), UN Doc. S/1994/1441, annex (1994).

12. Lei dos Partidos Politicos, Lei No. 15/91, de 11 de Maio de 1991, Art. 5, Diário da República, I Série No. 20.

13. Acordos de Paz Para Angola, 31 de Maio de 1991 (hereinafter, Bicesse Accords), UN Doc. S/22609 (1991).

14. See Luena Memorandum, supra n. 10 (chapter II, 2, (f)).

15. See Interim Report of the UN Secretary-General on the United Nations Mission in Angola, supra n. 8.

16. See Nogueira, F., United Nations and Portugal, A study of anti-colonialism (London, Sidgwick and Jackson 1963) at pp. 65–93Google Scholar.

17. Ibid., at pp. 74–75.

18. See UNGA Res. 1514 (XV), 14 December 1960 (UN Declaration on the granting of independence to all colonial countries and peoples).

19. MPLA (Movimento Popular de Libertação de Angola) was founded in 1956. Its President, and also the First President of Independent Angola, was the late Dr Agostinho Neto.

20. Heimer, F.-W., The Decolonization Conflict in Angola, 1974–76, An Essay in Political Sociology, (Geneva, Institut Universitaire de Hautes Etudes Internationales 1979) at p. 28Google Scholar.

21. Ibid., at pp. 39–46. See also Robinson, R.A.H., Contemporary Portugal: a History (London, George Allen and Unwin 1979)Google Scholar; McQueen, N., The Decolonization of Portuguese Africa: Metropolitan Revolution and the Dissolution of Empire (London, Longman 1997)Google Scholar; Humbaraci, A. and Muchnik, N., Portugal's African Wars: Angola, Guinea-Bissau, Mozambique (New York, The Third Press 1974)Google Scholar; Cann, John P., Counterinsurgency in Africa, The Portuguese Way of War, 1961–1974 (Westport CT, Greenwood Press 1997)Google Scholar; Smith-Morris, M., ‘Angola-Recent History’, Africa South of the Sahara (London, Europa Publications 1995)Google Scholar.

22. FNLA (Frente Popular de Libertação de Angola) was founded in 1962. Its President is Mr Holden Roberto.

23. Acordo entre o Estado Português e a Frente National de Libertação de Angola (FNLA), o Movimento Popular de Libertação de Angola (MPLA) e a União Nacional Para a Independência Total de Angola (UNITA) de 15 de Janiero de 1975 (hereinafter, Alvor Agreement). See Portuguese and English texts: Angola, O Governo de Transição, Documentos e Personalidades (Luanda, Livrangol 1975)Google Scholar.

24. Commentators have expressed the view according to which failure by Portugal to insist in a ‘power-sharing’ principle (as the MPLA movement suggested), as opposed to the principle the ‘winner takes all’, in the post-election period of the Alvor Agreement is one of the major reasons for the fiasco of the Alvor independence process. As a result, having the most heavily and better prepared army and fearing for its fate after elections, FNLA (soon followed by UNITA) attempted instead of elections, a military solution to the conflict by attacking MPLA forces. MPLA resisted and expelled both movement forces from the Angolan major cities. The Portuguese Governor declared thereafter, in August 1975, the transitional government suspended until the date of elections on 11 November 1975. See Heimer, op. cit. n. 20, at pp. 60–61. See also Minter, W., Apartheid's Contras, an inquiry into the roots of war in Angola and Mozambique (London, Zed Books 1994) at pp. 19, 95Google Scholar.

25. On the involvement of mercenaries in the civil war in Angola in 1975–76, see Stockwell, J., In Search of Enemies: a CIA story (New York, Norton & Co. 1978)Google Scholar. Stockwell was (by his own words) the CIA resident chief in Zaire of Special operations in Angola in 1975–1976. On early plans for American intervention in the Angolan conflict see El-Khawas, M.A. and Thomas, B., eds., The Kissinger Study of Southern Africa: National Security Memorandum, (Westport CT, Lawrence Hill 1976) p. 39Google Scholar. See also, Harsch, E. and Thomas, T., Angola: The Hidden History of Washington's War (New York, Pathfinder Press 1976)Google Scholar. See about the trial of 13 of these mercenaries in Angola infra Section 7.

26. On the South African Intervention in Angola in 1975–1976, see ‘Truth and Reconciliation Commission Report, 5 volumes’ (Cape Town, Truth and Reconciliation Commission, 1998), Vol. 2 chapter 2, ‘The State Outside South Africa between 1960 and 1990’ (hereinafter TRC Report). See also Hallett, R., ‘The South African Intervention in Angola, 1975–76’, 77 African Affairs (07 1978) pp. 347–386CrossRefGoogle Scholar. See about the crimes of South African Army in Angola, infra Section 7.

27. About the Cuban and Soviet Intervention in Angola, see Marques, G. Garcia, ‘Operation Carlota’, Nos. 101–2, 27 New Left Review (03–04 1977) p. 76 et seq.Google Scholar; Durch, W.J., ‘The Cuban Military in Africa and the Middle East: From Algeria to Angola’, 11 Studies in Comparative Communism (1978) p. 64 et seq.CrossRefGoogle Scholar; Valenta, J., ‘The Soviet-Cuban Intervention in Angola, 1975’, 11 Studies in Comparative Communism (1978) p. 11 et seq.CrossRefGoogle Scholar; Ponomarev, B., ‘Invincibility of the Liberation Movement’, Socialism: Theory and Practice (Moscow, Novosti Press Agency (Supplement) 1980)Google Scholar; Stevens, C., ‘The Soviet Union and Angola’, 75 African Affairs (1976) p. 299CrossRefGoogle Scholar.

28. See for a comprehensive overview of the dramatic events in 1974–1976 in Angola: Correia, P. Pezarat, Descolonização de Angola (Luanda, Ler & Escrever 1991)Google Scholar; Heimer, op. cit. n. 20; Legum, C. and Hodges, T., After Angola: The War over Southern Africa (London, Rex Collings 1976)Google Scholar; Marcum, J. A., The Angolan Revolution, Volume II: Exile Politics and Guerrilla Warfare, 1962–1976, (Cambridge MA, MIT 1978)Google Scholar; Guimarães, F. Andersen, The Origins of the Angolan Civil War: Foreign Intervention and Domestic Political Conflict (London, Macmillan 1998)Google Scholar; Ekwe-Ekwe, H., Conflict and Intervention in Africa, Nigeria, Angola, Zaire (London, Macmillan 1990)CrossRefGoogle Scholar; Brittain, V., Death of Dignity, Angola's Civil War (London, Pluto Press 1998)Google Scholar; James, W.M. III, A Political History of the Civil War in Angola 1974–1990 (New Brunswick NJ, Transaction Publishers 1992)Google Scholar.

29. The OAU recognised the Angolan government on 11 February 1976, during its second meeting to discuss the situation in Angola. The first attempt in January 1976 to get OAU recognition of the new MPLA-led government of Angola ended in a draw: 22 to 22. The OAU member states in favour were: Guinea-Bissau; Mozambique; Cabo Verde; Sao Tome e Principe; Algeria; Congo (Brazzaville); Guinea Equatorial; Guinea; Madagascar; Somalia; Niger; Nigeria; Benin; Libya; Sudan; Tanzania, Mali, Ghana, Chad, Burundi, Mauritius, Comoros Islands. Those against recognition were: Egypt; Morocco; Tunisia; Botswana; Cameroon; Cotê d'Ivoire; Gambia; Gabon; Burkina Fasso; Kenya; Liberia; Lesotho; Malawi; Mauritania; Rwanda; Central African Republic; Senegal; Sierra Leone; Swaziland; Togo; Zaire; Zambia. Thereafter, Ethiopia as the host country joined the group of those in favour, whereas Uganda holding the OAU presidency joined the group of those against recognition. Although later all these countries initially against came to recognise Angola, the support of some of them to UNITA rebels never ended. Not surprisingly, countries which were against recognition were also among the ones that violated the UN sanctions against UNITA in the 1990s (Togo, Burkina Faso, Cotê d'Ivoire, Zambia, Zaire, Gabon, etc.). About the OAU split on recognition of the MPLA government see James, ibid., at pp. 73–76, 86. About the countries violating the UN sanctions against UNITA in the 1990s see ‘Report of the Panel of Experts on Violations of Security Council Sanctions against UNITA’, UN Doc. S/2000/203, 10 March 2000.

30. Angola was admitted to the UN on 1 December 1976, becoming its 146th member. See ‘Angola's Foreign Minister’, New World Review (01-02 1977) at pp. 18–21Google Scholar.

31. After the 1975–76 events in Angola, the US Congress blocked any support overt or covert to terrorist organisations fighting against the government in Angola. However in 1985 the Clark Amendment was repealed by the Congress and covert assistance to UNITA rebels resumed. An estimated $250 million worth of covert aid was sent to UNITA between 1986 and 1991 according to commentators. See Vines, A., One Hand Tied: Angola and the UN (CIIR briefing paper, 06 1993) p. 4Google Scholar. See also James, op. cit. n. 28; Minter, op. cit. n. 24.

32. TRC Report, Vol. 2, supra n. 26, chapter 2, para. 11, at p. 45 (noting that: ‘The South African government's initial objective, therefore, was to prevent the MPLA from taking power at independence. When this failed, the goal became its overthrow and replacement by a ‘friendly’ anti-communist government led by the National Union for the Total Independence of Angola (UNITA)).’

33. See James, op. cit. n. 28, at pp. 165–166.

34. Oye, O., ‘Angola: Ideology and Pragmatism in Foreign Relations’, 57 International Affairs (Winter 1980/1981) at p. 263Google Scholar (noting that: ‘The South Africans have backed Jonas Savimbi not so much to further his aims, although this could be a reason, but, more importantly, because he compliments the Botha administration's objectives of destabilizing Angola, on the one hand, whilst making it difficult for PLAN (Peoples’ Liberation Army of Namibia — the armed wing of SWAPO — JD) to have a totally safe rear, on the other.’). See also Robin, loc. cit. n. 26.

35. See Brittain, op. cit. n. 28, at p. 11.

36. Ibid. See also TRC Report, supra n. 26, chapter 2, para. 17, at p. 46 (noting that: ‘Though the SADF's intervention failed to prevent the MPLA from taking power at independence in November 1975, and even though SADF forces were withdrawn in March 1976, South African military and political involvement in Angolan affairs continued for the next thirteen years … South African forces were not entirely withdrawn; the SADF created an eighteen-km-wide demilitarized zone (DMZ) along a 1000 km stretch of the border, which it retained after termination of the invasion.’).

37. See for an account of the negotiation process, Kühne, W., Südafrika und seine Nachbarn: Durchbruch zum Frieden? Zur Bedeutung der Vereinbarungen mit Mozambique und Angola vom Frühjar 1984 (Baden-Baden, Nomos Verlagsgesellschaft 1985)Google Scholar.

38. See Minter, op. cit. n. 24, at pp. 42–48.

39. Two such Agreements were signed by the Angolan government with Cuba on 4 February 1982 and on 19 March 1984.

40. See Marcum, J., ‘Retrenchment and Recalculation: South Africa and the Angola-Namibia Agreements’, in Kahn, O.E., ed., Disengagement from Southwest Africa: the Prospects for Peace in Angola and Namibia, (New Brunswick NJ, Transaction Publishers 1988) pp. 131, at 133–236Google Scholar; P.S. Falk, ‘Cuba and the Conflict in Angola and Namibia’, in Kahn, ibid., at pp. 95–101; Minter, op. cit. n. 24, at p. 48.

41. See Mc Queen, N., ‘Angola’, in Furley, O. and May, R., eds., African Interventionist States (Aldershot, Ashgate Publishing 2001) at p. 93Google Scholar (noting that: ‘one side effect of two decades of continuous conflict was that by mid-1990s the Luanda regime had acquired probably the largest and most heavily equipped armed force in Africa. An army of about 110,000 was supported by the most advanced artillery and armour to be produced in the eastern bloc before the collapse of the Soviet Union. The Angolan air force similarly equipped, remains immensely powerful, despite the end of the cold war and eastern bloc armament production which went with it.’).

42. Vines, A., Angola unravels, The rise and fall of the Lusaka Peace Process (New York, Human Rights Watch 1999) at p. 14Google Scholar (noting that: ‘In 1987, a series of major battles in the south of Angola culminated in the siege of Cuito Cuanavale by South African and UNITA forces. Although this resulted in a military stalemate, the outcome was a psychological defeat for the South African Defence Forces (SADF), which came to believe they could not win militarily in Angola. This prompted a rethinking of South African military strategy.’). Also see Tvedten, I., ‘U.S. Policy Towards Angola Since 1975’, 30 Journal of Modern African Studies (1992) at p. 31CrossRefGoogle Scholar (noting that: ‘It is generally agreed that the battle of Cuito Cuanavale in March 1988 marked the final attempt to secure a military solution to the Angolan conflict’).

43. The entire package is comprised of the following acts: the New York Principles for a Peaceful Settlement in South-western Africa, 20 July 1988; The Geneva Understanding among the Republic of Angola and South Africa, 5 August 1988; The Brazzaville Protocol, 13 December 1988; The New York Agreement Among the People's Republic of Angola, the Republic of Cuba, and the Republic of South Africa, 22 December 1988. See UN Doc. S/22609 (1991).

44. See Crocker, C.A., ‘Southern Africa: Eight years later’, 68 Foreign Affairs (1989) pp. 144, at 147–155CrossRefGoogle Scholar; Freeman, C.W. Jr, ‘The Angola/Namibia Accords’, 68 Foreign Affairs (1989) pp. 126, at 130–138CrossRefGoogle Scholar. C.A Crocker was Assistant Secretary of State for African Affairs at the US Department of State, 1981–89; C.W. Freeman, Jr. was principal Deputy Assistant Secretary of State for African Affairs at the US Department of State, 1986–1989.

45. For an earlier analysis of legal issues involved in the linkage of granting independence to illegally occupied Namibia by South Africa, with the ending of the legitimate presence of Cuban troops in Angola, see Francis, L.B., ‘Some Legal Implications of Linking Independence for Namibia to a Withdrawal of Cuban Forces from Angola’, 26 The Indian JIL (1986) p. 113Google Scholar.

46. See James, op. cit. n. 28, at pp. 243–245.

47. A declaration was adopted at the end of the summit: Declaração de Gbadolite, 22 de Junho de 1989. (hereinafter Gbadolite Declaration) See detailed account of the summit in James, op. cit. n. 28, at pp. 243–245. See text of the Gbadolite Declaration, ibid, at pp. 280–282.

48. See James, op cit. n. 28, at pp. 243–245.

49. James, sympathetic to Savimbi, writes: ‘In 1975, the Alvor Agreement had placed UNITA as a political partner to FNLA and MPLA. Now the Gbadolite Declaration gave new status to Savimbi. No longer was he a South African ‘puppet’, but a leader of stature who commanded respect. For example, Savimbi left Zaire in the company of President Joaquim Chissano of Mozambique.’ James, op. cit. n. 28, at p. 244.

50. See Anstee, M.J., ‘The experience in Angola, February 1992-June 1993’, in Whitman, J. and Pocock, D., eds., After Rwanda: the coordination of United Nations humanitarian assistance (New York, St. Martin's Press 1996) at pp. 161–178CrossRefGoogle Scholar; Blondin Beye, loc. cit. n. 6. Margaret J. Anstee was Special Representative of the UN Secretary-General in Angola to monitor the first multi-party elections in 1992. The late Alioune Blondin Beye was Special Representative of the UN Secretary-General in the post election period, and it was under his mediation that the Lusaka Protocol was signed in November 1994.

51. See Krška, V., ‘Peacekeeping in Angola (UNAVEM I and II)’, 4 International Peacekeeping (1997) pp. 75, at 87CrossRefGoogle Scholar.

52. Ibid., at pp. 88–89.

53. Anstee, loc. cit. n. 50, at p. 165.

54. See Brittain, op. cit. n. 28, at p. 46. See also Pereira, A.W., ‘The Neglected Tragedy: The Return to War in Angola, 1992–93’, 32 Journal of Modern African Studies (1994) pp. 1–28CrossRefGoogle Scholar.

55. See Brittain, ibid., at pp. 49–55.

56. Ibid., at pp. 56–68.

57. See Lewis, J., ‘Angola 1995: The road to peace’, XIII International Relations (1996) at p. 83Google Scholar.

58. Lusaka Protocol, supra n. 11.

59. Blondin Beye, loc. cit. n. 6, at pp. 17–19.

60. Krška, loc. cit. n. 51, at pp. 91, 92.

61. See Mc Queen, N., ‘Peacekeeping by attrition: The United Nations in Angola’, 36 Journal of Modern African Studies (1998) pp. 399, at 407–418CrossRefGoogle Scholar.

62. See Secretary-General Report on Angola (UN Doc. S/1997/640 (1997)).

63. See McQueen, loc. cit. n. 61, at p. 412.

64. Under the Lusaka Protocol, UNITA was also obliged to quarter 62,500 soldiers, but over 22,686 deserted after having registered. By 11 December 1996, when the quartering process officially ended, UNITA claimed that a total of 41,796 UNITA soldiers had been demobilized. However, the UN found out later that most of those quartered had not been combat troops, but people hors de combat quartered to ‘make up the numbers’ or child soldiers. Thus, the UN found, for example, that 10,728 were war-disabled soldiers and 4,799 were child soldiers. See Vines, op. cit. n. 42, at pp. 32–35.

65. See for a comprehensive study of conflict diamonds, I.J. Tamm, ‘Diamonds in Peace and War: Severing the Conflict Diamond Connection’, World Peace Found. Report No. 30 (2002) p. 2.

66. See UNSC Res. 1127, UN Doc. S/Res/1127 (1997), and UNSC res. 1135 (1997), UN Doc. S/Res/1135(1997).

67. Vines, op. cit. n. 42, at pp. 23–24.

68. See UNSC Res. 1173, UN Doc. S/Res/1173 (1998).

69. Vines, op. cit. n. 42, at p. 26.

70. Ibid., at pp. 26–27.

71. See ‘Angola Government Offers Savimbi Pardon’, AfrolNews, (2 09 1998)Google Scholar <http://www.afrol.com>.

72. See Lei de Amnistia No. 7/00, de 15 de Dezembro de 2000, Diário da República, I Série — No. 53.

73. See ‘Savimbi Death a Chance for Angolan Peace’, AfrolNews, (25 02 2002)Google Scholar <http://www.afrol.com>.

74. Convention (IV) Respecting the Laws and Customs of War on Land, and attached Regulations signed at The Hague, 18 October 1907, English translation with references in Schindler, D. and Toman, J., The Laws of Armed Conflicts, 3rd edn. (Geneva, Institute Henry-Dunant 1988) at p. 69Google Scholar.

75. Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Convention (III) Relative to the Treatment of Prisoners of War; Convention (IV) Relative to the Protection of Civilian Persons in Time of War; all four Conventions signed at Geneva, 12 August 1949; texts in Schindler and Toman, ibid., at pp. 373, 401, 423, 493.

76. Protocols Additional to the Geneva Conventions of 1949 (Protocol I), opened for signature 12 December 1977, reprinted in 16 ILM (1977) p. 1391 (hereinafter, AP I)Google Scholar.

77. Protocols Additional to the Geneva Conventions of 1949 (Protocol II), opened for signature 12 December 1977, reprinted in 16 ILM (1977) p. 1442 (hereinafter, AP II)Google Scholar.

78. Prosecutor v. Duško Tadić, Case No. IT-94–1-AR72, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 70 (hereinafter, Tadić Jurisdiction Decision).

79. For a discussion of the four categories of armed conflicts, see Schindler, D., ‘The Different Types of Armed Conflicts According to the Geneva Conventions and Protocols’, 163 Recueil des Cours (1979) p. 117Google Scholar. See also Veugthey, M., ‘Implementation and enforcement of Humanitarian law and Human Rights Law in Non-International Armed Conflicts: the Role of the International Committee of the Red Cross’, 33 Amer. Univ. LR (1983) pp. 83, at 88Google Scholar.

80. The Prosecutor v. Duško Tadić, Case No. IT-94–1-A, Appeal Judgement, 15 July 1999 (hereinafter Tadić Appeal Judgement) para. 84.

81. See Bothe, M., ‘Völkerrechtliche Aspekte des Angola-Konflikts’, 37 ZaöRV (1977) pp. 590–598Google Scholar; Hess, M., Die Anwendbarkeit des humanitären Völkerrechts, insbesondere in gemischten Konflikten (Zürich, Schulthess Polygraphisher Verlag 1983) pp. 207, 211Google Scholar.

82. In the Indictment against Slobodan Milošević, the former President of the Federal Republic of Yugoslavia, he was charged with being a member of a joint criminal enterprise whose objective was to commit war crimes through rebel armed groups fighting an internal war in the neighbouring country of Bosnia and Herzegovina, which were under overall control of FRY. See the Prosecutor v. Slobodan Milošević, Indictment, Case No. IT-01–51-I, 22 November 2001; for the ‘overall control’ doctrine Tadić Appeal Judgement, supra n. 80 paras. 137; 117–145.

83. Angola is also a party to the following treaties which may apply in event of an armed conflict: a) the 1925 Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, since 1990 (applies only in situations of international armed conflicts); b) the 1989 Convention on the Rights of the Child, since 1990 (applies in any type of armed conflict); c) the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, since 2002 (applies in any type of armed conflict); d) the 1977 OAU Convention for the Elimination of Mercenarism in Africa, since 1979 (applies in any type of armed conflict); e) the 1989 International Convention against the Recruitment, Use, Financing and Training of Mercenaries, since 1990 (applies in any type of armed conflict); f) In addition Angola has signed and is presently in the process of ratification of the 1998 Rome Statute of the International Criminal Court (applies in any type of armed conflict).

84. At the moment of ratification of the Geneva Conventions in 1961, Portugal entered the following reservation: ‘As there is no actual definition of what it meant by a conflict not of an international character, and as, in case this term is intended to refer solely to civil war, it is not clearly laid down at what moment an armed rebellion within a country should be considered as having become a civil war, Portugal reserves the right not to apply the provisions of Article 3, in so far as they may be contrary to the provisions of Portuguese law, in all territories subject to her sovereignty in any part of the world.’ See <http://www.icrc.org/ihl.nsf/>.

85. See infra n. 96.

86. See Case Concerning Military and Paramilitary Activities in and Against Nicaragua, (Nicaragua v. US) (Merits), ICJ Rep. (1986) (hereinafter ‘Nicaragua case’) p. 14, paras. 217–220.

87. For a discussion of the status of people fighting for self-determination as subjects of international law, and the applicability of the entire body of the laws of war to their fighting, see Wilson, H.A., International Law and Use of Force by National Liberation Movements (Oxford, Clarendon Press 1988)Google Scholar; Abi-Saab, G., Wars of National Liberation and the Laws of War, 3 Annates d'Études international (1972) p. 93Google Scholar.

88. UNGA Res. 2105 (XX) adopted 20 December 1965, stating that the UN ‘recognises the legitimacy of the struggle by the peoples under colonial rule to exercise their right to self-determination and independence and invites all States to provide material and moral assistance to the national liberation movements in colonial territories’. See also UNGA Res. 2107(XX) adopted 20 December 1965; UNGA Res. 2189 (XXI) 13 December 1966; UNGA Res. 2326 (XXII) 16 December 1967; UNGA Res. 2446 (XXIII) 19 December 1968.

89. See UNGA Res 2395 (XXIII) 29 November 1968. See also UNGA Res. 2465 (XXIII) 20 December 1968; UNGA Res. 2548 (XXIV) 11 December 1969; UNGA Res.2674 (XXV) 9 December 1970.

90. See Nicaragua case, supra n. 86.

91. See for example Kooijmans, P.H., ‘In the Shadowland Between Civil War and Civil Strife: Some Reflections on the Standard-Setting Process’, in Delissen, A.J.M. and Tanja, G.J., eds., Humanitarian Law of Armed Conflict, Challenges Ahead, Essays in Honour of Frits Kalshoven, (Dordrecht, Martinus Nijhoff Publishers 1991) pp. 225, at 228–235Google Scholar.

92. Such right is, however, accorded to the national liberation movements under Art. 96(3) of API.

93. See Kooijmans, loc. cit. n. 93.

94. See Junod, S., ‘Additional Protocol II: History and Scope’, 33 Amer. Univ. LR (1983) pp. 29, at 34Google Scholar, (noting that: ‘Art. 3 and Protocol II are binding not only on the established government, but also on the insurgent party. They bind all parties to the conflict in their relation to each other. How an opposition party, which is not a High Contracting Party, can be bound by an international treaty, is a question that must be considered. In theory, the ratification of or adherence to an international treaty creates rights and obligations not only for the authorities in place, but also for the entire population of the territory of that state. Although this explanation, which is followed by the ICRC, has not always been considered doctrinally satisfactory, it has never really been formally contested.’).

95. See 716 RICR (1980) p. 328Google Scholar. See for an account of the circumstances, Hess, supra n. 81, at p. 212.

96. There had been a bit of discussion as to whether common Article 3 applies automatically, when the objective conditions for existence of an armed conflict are in place, or, if it needs recognition by a state. However the Tadić Jurisdiction Decision definition of an armed conflict above clearly suggests that the test is purely objective (protracted armed violence and organized armed groups). This is however easy to argue, when we have an international institution adjudicating the facts. In most situations of internal violence, states are still reluctant to recognise such an armed conflict, even when the objective requirements are in place. For an interesting discussion of the implications of such a position, see Solf, W.A., ‘The Status of Combatants in non-international armed conflicts’, 33 Amer. Univ. LR (1983) pp. 53, at p. 59Google Scholar.

97. Ibid., at p. 64.

98. There is no obligation to do so under international humanitarian law, however, as killing members of the State Armed Forces, Police or other security forces by rebels even in combat situations is still a crime under national law, and international law does not override this rule, nor does it prohibit states from treating rebels as ordinary criminals in such circumstances. See Solf, loc. cit. n. 96, at pp. 58–60.

99. For the Tadić test see supra n. 80.

100. See Bothe, loc. cit. n. 81, at pp. 592, 596, 597; Hess, op. cit. n. 81, at pp. 210, 211.

101. Regarding the relevant UN resolutions concerning Portugal, see supra nn. 86, 89. See also Nicaragua case on the customary law status of the Geneva Conventions, supra n. 88.

102. See Dugard, J., ‘South Africa's Truth and Reconciliation Process and International Humanitarian Law’, 2 YIHL (1999) pp. 254, at 259CrossRefGoogle Scholar.

103. See Nicaragua case, supra n. 88.

104. South Africa became a party to the Geneva Conventions in 1952 and to the Additional Protocols in 1995. See Dugard, loc. cit. n. 102, at p. 258.

105. Common Art. 2 of the Geneva Conventions states that the Conventions apply to ‘any … armed conflict between two or more of the High Contracting Parties, even if the state of war is not recognised by one of them … and to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance’. The ICRC has interpreted these provisions as meaning that ‘any difference arising between the two States and leading to the intervention of armed forces is an armed conflict within the meaning of Art. 2, even if one of the parties denies the existence of a state of war. It makes no difference how long the conflict lasts, or how much slaughter takes place. The respect due to the human person as such is not measured by the number of victims.’ See Pictet, J., ed., Commentary on Geneva Convention IV (Geneva, ICRC 1958) p. 20Google Scholar. This interpretation has been cited as authoritative by the ICTY in its various decisions. See for example Prosecutor v. Duško Tadić, Case No IT-94–1, Opinion and Judgement, 7 May 1997, paras. 118–119, 569, 607; Prosecutor v. Zejnil Delalić et al., Case No. IT-96–21-T, Judgement, 16 November 1998 (hereinafter Čelebići Trial Judgement) para. 208.

106. Miller, A., ‘Military Mergers: The Reintegration of Armed Forces After Civil Wars’, 25-SUM Fletcher F. World Aff. (2001) pp. 129, at 131–132Google Scholar.

107. Ibid.

108. Stedman, S.J., ‘Spoiler Problems in Peace Processes’, 22 International Security (1997) at pp. 9–15CrossRefGoogle Scholar.

109. Ibid. See also Miller, loc. cit. n. 106.

110. See ‘Announcement of Cessation of all Offensive Military Operations’, 13 03 2002, Afrol-NewsGoogle Scholar <http://www.afrol.com>.

111. See the Luena Memorandum, supra n. 10.

112. See Miller, loc. cit. n. 106, at p. 131 (noting that: ‘Political will to integrate is a threshold problem without which no reconciliation is possible. The institutional arrangements created by peace accords should develop mechanisms that generate trust and increase cooperation between parties. However, as the examples of Angola and Bosnia demonstrate, political will cannot be manufactured from the outside. It is important to distinguish whether commitment to a peace agreement is sincere or merely a military tactic to buy time or rebuild military strength.’).

113. See ‘Nota do Governo sobre o encerramento das areas do acolhimento’, ANGOP (Angola Press Agency) 20 June 2003. The government has been using a similar formula for the resolution of a short-lived strife in Cabinda, the far northern province of Angola, where two separatist groups have been terrorizing the civilian population in reclaiming from the government more autonomy for the province. According to the Angolan Press Agency (ANGOP), the former members of these terrorist groups are now being integrated into the Army or demobilized for integration in the civil society. See ‘Cabinda: Iniciou o programa de apoio aos ex-militares da FLEC’, ANGOP, 29 November 2003.

114. Six hundred and fifty eight foreign troops (from Democratic Republic of Congo and Rwanda) together with 253 of their dependents were found under to be with UNITA. Among them the former Chief of Staff of the Rwandan Army, General Augustin Bizimungu, whom the International War Crimes Tribunal in Rwanda sought for charges of genocide, figured prominently. He was arrested by the Angolan government on 2 August 2002, acting on the basis of an arrest warrant issued by the ICTR on 12 April 2002, and handed over by it to the Rwanda Tribunal in Arusha. See ‘Interim Report of the Secretary-General’, supra n. 8, para. 4. See also ICTR Press release ‘Former Chief of Staff Pleads not guilty’, ICTR/Info-9–2-321 Eng , <http://www.ictr.org/default.html>.

115. The government and UNITA on 26 August 2002 formally signed a new ‘Memorandum of Commitment’ to solve the outstanding political questions (within a 45-day timeframe) which included the following: ‘national reconciliation including the social reintegration of UNITA ex-combatants; allocation of facilities for UNITA and residences for the Party leadership; submission of UNITA's nominees for positions in the government and public service; establishment of UNITA as a political party, and reinstating the status of the leader of the largest opposition party; review of the symbols of the Republic and the electoral process’. The Memorandum also provided for the re-establishment of the Lusaka Protocol Joint Commission under UN chairmanship. On 20 November 2002, the Joint Commission determined that the main tasks of the Lusaka Protocol had been concluded, recommended that the UN SC lift all sanctions against UNITA, and decided to dissolve itself accordingly. See ‘Interim Report of the Secretary-General on the United Nations Mission in Angola’, supra n. 8, paras. 5–7, 17–21.

116. See Tadić Jurisdiction Decision, supra n. 78, paras. 128–136; See Prosecutor v. Zejnil Delalić, Zdravko Mucić (aka ‘Pavo’), Hazim Delić and Esad Landžo (aka ‘Zenga’), Case No. IT-96–21-A, 20 February 2001, Appeal Judgement (hereinafter Čelebići Appeal Judgement), paras. 160–172 .

117. Čelebići Appeal Judgement, ibid., para. 163.

118. Ibid.

119. Meron, T., ‘International criminalization of internal atrocities’, 89 AJIL (1995) pp. 554 at 562CrossRefGoogle Scholar.

120. See Čelebići Appeal Judgement, supra n. 116, para. 163.

121. Angolan legislation has conferred jurisdiction on Angolan Courts to adjudicate cases of war crimes, and crimes against humanity since 1976. However, no material law defines these crimes and their constituent elements. See Lei dos Tribunais Populares Revolutionáries, Lei No. 8/78, de 26 de Maio de 1978, (Art. 4), Diário da República I Série, No. 137 (1978); Lei do Sistema Unificado de Justiça, Lei No. 18/88, de 31 de Dezembro de 1988, (Art. 21, (b)), Diário da República I Série, No. 51 (1988).

122. See Lei Constitutional de Angola, Com Emendas de 22 de Agosto de 1992, Art. 21. An English translation can be found on the official website of Angola: <http://www.angola.org>.

123. See Henkin, L., ‘Treaties in Constitutional Democracy’, 10 Michigan JIL (1989) p. 425Google Scholar.

124. See Tadić Jurisdiction Decision, supra n. 78, para. 128–136; Čelebići Appeal Judgement, supra n. 116, para. 163.

125. See infra section 6.3, about relevant legal issues concerning domestic prosecution of violations of the laws of internal armed conflicts.

126. Prosecutor v. Enver Hadžihasanović, Mehmed Alagić, Amir Kubura, Case No. IT-01–47-PT), ‘Decision on Joint Challenge to Jurisdiction’, 12 November 2002, para. 174 (hereinafter, Hadžihasanović Trial Decision).

127. Čelebići Trial Judgement, supra n. 105, para. 346.

128. See Joint Challenge to Jurisdiction Arising from the Amended Indictment, Written Submissions of Enver Hadžihasanović, 10 May 2002; Written Submission of Amir Kubura on Defence Challenges to Jurisdiction, 10 May 2002; Submissions of Mehmed Alagić on the Challenge to Jurisdiction Based on the Illegality of Applying Article 7(3) to Non-International Armed Conflict,’ dated 9 May 2002, and filed on 10 May 2002.

129. The doctrine was applied before in the ICTY and ICTR contexts but without the question of legality being raised.

130. The Prosecutor v. Enver Hadžihasanović, Mehmed Alagić, Amir Kubura, Case No. IT-01–47-PT, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility case, 17 July 2003, paras. 21, 22 (hereinafter Hadžihasanović Appeal Decision).

131. Hadžihasanović, Trial Decision, supra n. 126, para. 66.

132. Hadžihasanović, Appeal Decision, supra n. 130, para. 20.

133. Ibid., para. 15.

134. Ibid., para. 18.

135. Addressing the Angolan people on 6 January 2003 in a radio message, Mr Camalata Numa, UNITA political affairs secretary and a former UNITA general, stated that: ‘UNITA made the war and assumes responsibility for much of the errors produced during the armed conflict, because many lives were lost and nobody can pay for a life. And UNITA assumes responsibility for that many lives were lost as consequence of this war.’ And that it was ‘within this framework that UNITA comes forward before the people to beg for pardon because many lives were lost’. ‘We assume responsibility for our errors. We ask for forgiveness for the period of war that in this country endured since 1975.’ See ‘UNITA apologises for partaking in Angolan war’, AfrolNews (8 01 2003)Google Scholar <http://www.afrol.com>, visited 10 January 2003.

136. Examples of acts supposedly committed by the government, which however do not constitute a violation of international law in any way are: parading ‘prisoners of war’ (regarding UNITA rebels, however, prisoner of war status is not recognised in internal armed conflicts); transfer of civilians from one place to another (permissible, however, for security reasons) etc. See Vines, op. cit. n. 42, at pp. 75–79.

137. Please note however that as the law is generally permissible, international jurisdictions (as the ICTY case-law shows) may adopt different approaches. See infra section 6.3 for a discussion about the duty or right of national states to prosecute violations of international humanitarian law in internal armed conflicts.

138. See James, op. cit. n. 28, at pp. 120–122.

139. See Vines, op. cit. n. 42, at pp. 59–62.

140. See supra n. 64.

141. See Human Rights Watch Reports from 1992 to 2002 <http://www.hrw.org>.

142. See Vines, op. cit. n. 42, at p. 26.

143. See UN Doc. S/1998/1110, 23 November 1998.

144. See text: ‘Parliamentary Resolution Declaring Jonas Savimbi a War Criminal’, 27 January 1999, <http://www.angola.org>. See also Vines, op. cit. n. 42, at p. 28.

145. Vines, ibid., at pp. 28, 29.

146. See Solf, loc. cit. n. 98, at pp. 56, 64.

147. For example Michael Scharf considers that such a duty exists only where a Convention specifically so provides (this is the case of the Geneva Conventions (in relation to grave breaches) and the Genocide and Torture Conventions) and that in other circumstances, like crimes against humanity or crimes committed in internal armed conflicts such a duty does not exist. See Scharf, M., ‘The Letter of the Law: The Scope of the International Legal Obligation to Prosecute Human Rights Crimes’, 59 Law and Contemporary Problems (1996) pp. 41 at 43CrossRefGoogle Scholar. See also Solf, loc. cit. n. 98, at pp. 59, 60 (noting that ‘none of the provisions of the Conventions relating to enforcement, therefore, including the prosecute- or-extradite provisions, apply to the norms of common article 3.’).

148. See Cherif Bassiouni, M., ‘Searching for peace and achieving Justice: The need for accountability’, 59 Law and Contemporary Problems (1996) pp. 9, at 17CrossRefGoogle Scholar (stating that: ‘Crimes against humanity, genocide, war crimes (under conventional and customary regulation of armed conflicts), and torture are international crimes that have risen to the level of jus cogens. As a consequence, the following duties arise: the obligation to prosecute or extradite; to provide legal assistance; to eliminate statutes of limitations; to eliminate immunities of superiors up to and including heads of states. Under international law, these obligations are to be considered as obligatio ergo omnes, the consequence of which is that impunity cannot be granted.’).

149. Loi Belge relative a la repression des infractions graves aux conventions de Genève du 12 aôut 1949 aux protocoles I et II du 8 juin 1977, de 16 de juin de 1993, Moniteur belge, 4 aôut 1993, as amended by Loi du 10 février 1999, Moniteur belge, 23 mars 1999.

150. See Cherif Bassiouni, loc. cit. n. 148.

151. See Tadić Jurisdiction Decision, supra n. 78, paras. 80–81.

152. See Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium) ICJ, 14 February 2002.

153. See Bothe, M., ‘War crimes in non-international armed conflicts’, 24 Israel YB HR (1994) pp. 241, at 247–249Google Scholar.

154. See First Geneva Convention, supra n. 75, Art. 49; Second Geneva Convention, supra n. 75, Art. 50; Third Geneva Convention, supra n. 75, Art. 129; Fourth Geneva Convention, supra n. 75, Art. 146.

155. Ibid.

156. Pictet, J., ed., Commentary on I Geneva Convention Relative to the Protection of Civilian Persons in Time of War, (Geneva, ICRC 1958) p. 367Google Scholar.

157. See infra nn. 165, 184.

158. See Bothe, loc. cit. n. 153, at p. 248.

159. American Convention on Human Rights, opened for signature 22 November 1969, O.A.S.T.S. No. 36, reprinted in 9 ILM (1970) p. 673Google Scholar (entered into force 18 July 1978) (hereinafter, the American Convention).

160. See Bothe, loc. cit. n. 153 at pp. 248–249. Commentators also rely on the following three communications issued by the Human Rights Committee established to monitor compliance with the Covenant on Civil and Political Rights to find a ‘duty to punish’ in internal armed conflicts: a) Responding to a communication alleging torture in Zaire, the Committee commented that Zaire was ‘under a duty to … conduct an inquiry into the circumstances of torture, to punish those found guilty of torture and to take steps to ensure that similar violations do not occur in the future’, b) In another case involving allegations of extra-legal executions in Surinam, the Committee requested the government ‘to take effective steps … to investigate the killings … and to bring to justice any persons found to be responsible’, c) In response to a communication alleging forced disappearances in Uruguay, the Committee urged the government of Uruguay to take effective steps to bring to justice any persons found responsible. Michael Scharf rejects such reading, noting that: ‘During the negotiations of the Covenant, the delegates specifically considered and rejected a proposal that would have required states to prosecute violators. To read in such a requirement on the basis of the Human Rights Committee's comments would be to contravene the understanding of the Conventions’ drafters upon which the majority of Parties relied when ratifying the Convention.’ Scharf, loc. cit. n. 149, at p. 49.

161. See Weiner, R.O., ‘Trying to make ends meet: reconciling the law and practice of human rights amnesties’, 26 St Mary's LJ (1995) at pp. 857 at p. 869Google Scholar.

162. See ‘Legality of the Threat or Use of Nuclear Weapons’, (Advisory Opinion) ICJ Rep. (1996) 226, para. 25 (8 07 1996)Google Scholar.

163. For the crimes of genocide and torture the relevant conventions specifically impose an obligation to punish (Art. VI of the Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, Art. II, (78 UNTS 277, 280), and Arts. IV, VII of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 4 February 1985, reprinted in 23 ILM (1984) p. 1027Google Scholar. For crimes against humanity, most of the commentators support the view that customary law imposes an obligation to punish. See Joyner, C.C., ‘Redressing Impunity for Human Rights Violations: The Universal Declaration and the Search for Accountability’, 26 Denver JIL & Pol. (1998) pp. 591 at p. 613Google Scholar (stating that: ‘the duty to prosecute certain grave human rights violations, derived from international criminal law, clearly implies that criminal acts subject to such a duty cannot at least in principle be amnestied’). The cases of the former Yugoslavia and Rwanda are examples of situations where gross violations of human rights have prompted the international community to request that the perpetrators of these acts do not go unpunished, as the best way to ensure lasting peace in those countries.

164. This approach, which finds support in the UN SC practice, is not disputed by anyone. It was supported by the International Court of Justice and by commentators. See Arrest Warrant case (Congo v. Belgium) supra n. 152, para. 61. See also Scharf, loc. cit. n. 147, at pp. 59–60 (noting that: ‘The Security Council can, through a Chapter VII resolution, create binding obligations on states to bring individuals responsible for international crimes to justice. The Council, for example, adopted Res. 748, requiring Libya to surrender to the United States or the United Kingdom for prosecution the two Libyan officials charged with bombing Pan American Flight 103. A year later, the Council adopted Res. 837, calling for the arrest of Somali Warlord Mohamed Farrah Aidid, who was responsible for the murder of 24 UN peacekeepers. In addition, the Security Council resolutions establishing the Yugoslavia and Rwanda War Crimes Tribunals impose an obligation on all states that are members of the United Nations to cooperate fully with the Tribunal, including its orders of arrest.’).

165. There are commentators who go so far as to admit that the amnesty alternative to prosecutions has even become a ‘customary law right for democracies in transition’, although it seems to be what the authors desire rather than already any law: See Schabacker, E.W., ‘Reconciliation or Justice and Ashes: Amnesty and the Duty to Punish Human Rights Offences’, 12 New York ILR (1999) at p. 54Google Scholar, stating that: ‘Custom yields a different set of norms and rules in the cases of governments making the transition to democracy. From Latin America to Asia, Africa, and Eastern Europe, fledgling democracies have rejected prosecution and opted instead for reconciliation through a combination of truth and forgiveness. In these cases, the evidence of state practice and the goals of human rights protection create a rule of customary international law that allows governments to make this choice when necessary to preserve law and order.’

166. See Chesterman, S., ‘No justice without peace? International Criminal Law and the decision to Prosecute’, in Chesterman, S., ed., Civilians in War (London, Lynne Rienner Publishers 2001) pp. 145, at p. 157Google Scholar.

167. See Scharf, loc. cit. n. 149, at p. 41 (noting that: ‘At the preparatory conference for the establishment of a permanent international criminal court in August 1997, the U.S. Delegation circulated a paper suggesting that the proposed permanent court should take into account such amnesties in the interest of international peace and national reconciliation when deciding whether to prosecute.’).

168. See Cassel, D., ‘Lessons from the Americas: Guidelines for International Response to Amnesties for Atrocities’, 59 Law and Contemporary Problems (1996) pp. 197, 200–201CrossRefGoogle Scholar; see also Chesterman, loc. cit. n. 166, at p. 154.

169. The UN has also in the past encouraged similar amnesty deals in other countries like El Salvador, Haiti, South Africa, Mozambique. See Scharf, loc. cit. n. 147, at p. 41. See also Stahn, C., ‘United Nations peace-building, amnesties and alternative forms of justice: A change in practice?’, 84 IRRC (2002) pp. 191–205Google Scholar.

170. Chestermann, loc. cit. n. 166, at p. 156. See about the US position on this issue, supra n. 165.

171. Lei de Amnistia, Lei No. 4/02 de 4 de Abril de 2002, Diário da República, I Série — No. 27. See also ‘Angola Rebels Granted Amnesty’, BBC News, 2 April 2002, <http://www.bbc.com>.

172. ‘Azanian Peoples Organization (AZAPO) v. President of the Republic of South Africa (1996)’, 4 South African LR (1997) pp. 671, at p. 683, para. 31Google Scholar.

173. See Schabacker, loc. cit. n. 165, at p. 51.

174. Ibid., at p. 53.

175. See Bassiouni, loc. cit. n. 148, at p. 22, (noting that: ‘Victim compensation is a necessity.’). See also Akinrinade, B., ‘International Humanitarian Law and the Conflict in Sierra Leone’, 15 Notre Dame JL Ethics & Pub. Policy (2001) pp. 391, at pp. 448–450Google Scholar.

176. See Bassiouni, ibid. (noting that: ‘Monetary compensation should not be deemed the only outcome. Non-monetary forms of compensation should also be developed, particularly in societies where the economy is unable to sustain large monetary sums.’).

177. See ‘Conselho de Ministros Aprova Projecto Aldeamentos em Angola’, Angop-Press Agency, 20 December 2003.

178. See Lei de Amnistia, Lei No. 4/02, de 4 de Abril de 2002, supra n. 171.

179. See about the Amnesty Law of Angola adopted in 2000, Doria, J., ‘Recent developments in Angola concerning IHL’, 3 YIHL (2000) at p. 411Google Scholar.

180. A similar right in the way of a disclaimer by the UN Secretary-General's Representative appended to the Lomé Peace Agreement for Sierra Leone concerning amnesty provisions was also given to the government of Sierra Leone in 1999. When the rebels once again violated this peace agreement and resorted again to war, the government of Sierra Leone, based on this disclaimer, requested on 12 June 2000 UN assistance to establish a mixed international/national Special Court to try the responsible rebels. See Fifth Report of the UN Secretary-General on the United Nations Mission in Sierra Leone, UN Doc. S/2000/751 (2000), 31 July 2000, paras. 9, 10. Thereafter, the United Nations Security Council adopted Res. 1315/2000 on 14 August 2000 (UN Doc. S/RES/1315(2000) stating: ‘Noting that the Heads of States and Governments of ECOWAS agreed at the 23rd Summit of the Organization in Abuja on 28 and 29 May 2000 to dispatch a regional investigation of resumption of hostilities’, ‘Recalling that the Special Representative of the Secretary-General appended to his signature of the Lomé Agreement a statement that the United Nations holds the understanding that the amnesty provisions of the Agreement shall not apply to international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law’, ‘Recognising that in the particular circumstances of Sierra Leone, a credible system of justice and accountability for the very serious crimes committed there would end impunity and would contribute to the process of national reconciliation and to the restoration and maintenance of peace’, ‘Taking note in this regard of the letter dated 12 June 2000 from the President of Sierra Leone to the Secretary-General and the Suggested Framework attached to it’, ‘Recognising further the desire of the government of Sierra Leone for assistance from the United Nations in establishing a strong and credible court that will meet the objectives of bringing justice and ensuring lasting peace’, ‘Reiterating that the situation in Sierra Leone continues to constitute a threat to international peace and security in the region’, ‘1. Requests the Secretary-General to negotiate an agreement with the government of Sierra Leone to create an independent special court consistent with this resolution’, ‘2. Recommends that the subject matter jurisdiction of the special court should include notably crimes against humanity, war crimes and other serious violations of international humanitarian law, as well as crimes under relevant Sierra Leonean law committed within the territory of Sierra Leone’, ‘3. Recommends further that the special court should have personal jurisdiction over persons who bear the greatest responsibility for the commission of the crimes referred to in paragraph 2, including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone’) [Emphasis added].

181. The government did attempt to prosecute UNITA rebels in the past. However, such efforts met with a cold UN reaction. Thus, when in 24 July 1999 the Angolan government issued an arrest warrant against Savimbi for charges which included rebellion, sabotage, murder and torture, the UN Secretary-General Koffi Anan reacted negatively stating that the warrant was ‘wrong’ and that ‘you make peace with enemies, and to make peace you have to have communications, either directly or through third parties’. See Vines, op. cit. n. 42, at p. 29.

182. Such was the case, for example, in the aftermath of the conflicts in the territories of the former Yugoslavia and Rwanda, when the UN SC adopted resolutions under Chapter VII imposing a duty on countries of the world to give effect to those resolutions. See UN SC Res. 827/1993 (UN Doc. S/RES/827(1993), stating that the UN SC: ‘Determining that this situation continues to constitute a threat to international peace and security’, ‘Convinced that in the particular circumstances of the former Yugoslavia, the establishment as an ad hoc measure by the Council of an international tribunal and the prosecution of persons responsible for serious violations of international humanitarian law would enable this aim to be achieved and would contribute to the restoration and maintenance of peace’, ‘…4. Decides that all States shall cooperate fully with the International Tribunal and its organs in accordance with present resolution and the Statute of the International Tribunal and that consequently all States shall take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute, including the obligation of States to comply with requests for assistance or orders issued by a Trial Chamber under article 29 of the Statute’. Also see UN SC Res. 955/1994 (UN Doc S/RES/955(1994), stating that the UN SC: ‘Determining that this situation continues to constitute a threat to international peace and security’, ‘Convinced that in the particular circumstances of Rwanda, the prosecution of persons responsible for serious violations of international humanitarian law would enable this aim to be achieved and would contribute to the process of national reconciliation and to the restoration and maintenance of peace’, ‘…2. Decides that all States shall cooperate fully with the international Tribunal and that consequently all states shall take any measures necessary under their domestic law to implement provisions of the present resolution and the Statute, including the obligation of States to comply with requests for assistance or orders issued by a Trial Chamber under Article 28 of the Statute and requests States to keep the Secretary-General informed of such measures.’ [Emphasis added].

183. See UN Secretary-General Interim Report on Angola (2002), supra n. 8.

184. See UNSC Res. 1412 (2002), 17 May 2002 (UN Doc S/Res/1412 (2002)); UNSC Res. 1448 (2002); 9 December 2002 (UN Doc. S/Res/1448(2002)).

185. In its Res. 1432 (2002) of 15 August 2002, the UN Security Council welcomed ‘the historic step’ taken by the government of Angola and UNITA on 4 April 2002, in signing the Luena Memorandum of Understanding and emphasised ‘the importance of the full implementation of the ‘Acordos de Paz’, the Lusaka Protocol, the Memorandum of Understanding Addendum of 4 April 2002, and the relevant United Nations Security Council resolutions in close cooperation with the United Nations and the Troika of Observers'. [Emphasis added]. See UN Doc. S/RES/1432(2002).

186. See supra n. 135.

187. See Stockwell, op. cit. n. 25.

188. There were, however, other trials of mercenaries but of minor importance in terms of the number of accused. For example, the trial in Conakry of the mercenaries who invaded Guinea in 1970, the trial of Rolf Steiner in the Sudan in 1971, and the trial of mercenaries in Seychelles in 1981. See Zarate, J.C., ‘The emergence of a new dog of war: Private international security companies, international law, and the new world disorder’, 34 Stanford JIL (1998) pp. 75 at pp. 95, 96Google Scholar.

189. They were one Irish, nine British, and three Americans.

190. For a detailed account of this trial see Burchett, W. and Roebuck, D., The Whores of War: Mercenaries Today (London, Longmans 1977)Google Scholar; Hoover, M.J., ‘The Laws of War and the Angolan Trial of Mercenaries: Death to the Dogs of War’, 9 Case Western Reserve JIL (1977) p. 323Google Scholar; Blishchenko, I.P. and Doria, J., Precedents in international public and private law (Moscow, MNIMP Publishing House 1999) (in Russian: Pretsedenty v Mejdunarodnom Publytchnom y Tchastnom Prave) pp. 280–285Google Scholar.

191. See for a list of such countries and their detailed legislation in Burchett and Roebuck, op. cit. n. 190.

192. See trial of mercenaries in Guinea in 1970 and in Sudan in 1971, supra n. 190.

193. The Tribunal based its decision among others on the following UN resolutions: UNGA Res. 2395, UN GAOR, 23rd Sess. 1, Supp. 18, at 59 (UN Doc. A/7218 (1968)); UNGA Res. 2465, UN GAOR, 23rd Sess., Supp. 18, at 5 (UN Doc. A/7218 (1968)); UNGA Res. 2548, UNGAOR, 24th Sess., Supp. 30, at 5 (UN Doc. A/7630 (1969)); UNGA Res. 3103, UN GAOR, 28th Sess., Supp. 30, at 142 (UN Doc. A/9030 (1973)).

194. Nine were given sentences up to 30 years in prison, and four were sentenced to death. See Blishchenko and Doria, op. cit. n. 190, at p. 284.

195. OAU Doc. CM/433/Rev.L, Annex I (1972).

196. See UNGA Res. 44/34, UN GAOR 6th Comm., 44th Sess., 72nd plen. Mtg.; Annex, Agenda Item 144, UN Doc. A/44/766 (1989) reprinted in UN GAOR, 44th Sess., Supp. No. 49, at 306, UN Doc. A/44/49 (1990) (hereinafter, Convention against Mercenaries).

197. See full text of the indictment in Hoover, loc. cit. n. 190, at p. 352.

198. See the full text of the judgement, ibid., at p. 374.

199. See Baxter, R.R., ‘So-called ‘unprivileged belligerency’: spies, guerrillas, and saboteurs’, 28 BYIL (1951) at pp. 328 et seq. and 343 et seq.Google Scholar; Dinstein, Y., ‘The distinction between unlawful combatants and war criminals, in Dinstein, Y., ed., International Law at a time of Perplexity (Essays in honour of Shabtai Rosenne) (Dordrecht, Martinus Nijhoff 1989) p. 103 at p. 105Google Scholar; Kalshoven, F., ‘The position of guerrilla fighters under the law of war’, 11 Revue de droit penal militaire et de droit de la guerre (1972) at pp. 73 et seqGoogle Scholar.

200. See for example Cesner, P. and Brant, A., ‘Law of the Mercenary: An International Dilemma’, 6 Cap. Univ. LR (1977) pp. 339, at p. 349Google Scholar.

201. See Zarate, loc. cit. n. 188, at p. 137 (text in fn. 148).

202. It should be noted, that many countries have foreign forces under their service, for example the ‘British Gourka’, or the ‘French Foreign Legion’, or even the former South African 32 battalion (Angolans), although there, the situation is slightly different since they are made formally part of the national Army (though still independent structures, in terms of national composition (as the units remain made up mainly of foreigners, sometimes apart from the commanding staff). See Garmon, T., ‘Domesticating International Corporate Responsibility: Holding Private Military Firms Accountable under the Alien Tort Claims Act’, 22 Tulane JI & Comp. L (2003) pp. 323, at 332, 333Google Scholar.

203. The next free and democratic elections in the country (a process interrupted by UNITA's war after the previous elections), are still to be announced. UNITA is rashly pushing again for immediate elections. Having in mind the experience of the past, not only demobilization but also complete social reintegration of the demobilized troops and reasonable settlement of the 4 million displaced Angolans is an imperative before normal elections can take place in the country, to avoid return to war again in case UNITA loses the elections. An optimal timeframe for elections would be September 2006, when the spectrum of war could reasonably be expected to be completely left behind, and the government together with all the international community to have essentially carried out the defying post-war period goals of social stabilization and pacification of spirits in the country. See ‘UNITA exige eleicoes’, ANGOP, 18 February 2003.

204. See Venter, A.J., ‘Anguish in Angola’, Soldiers of Fortune (12 1996) at p. 63Google Scholar.

205. The Executive Outcome military advisers had the same success in ending another insurrection movement in Sierra Leone. See Garmon, loc. cit. n. 202, at pp. 333, 334.

206. Lusaka Protocol (Annex 2, para. II(6)). See supra n. 11.

207. Under the 1977 Additional Protocol I (para. 2 of Art. 47), a mercenary is any person who: ‘(a) is specially recruited locally or abroad in order to fight in an armed conflict; (b) does, in fact, take direct part in the hostilities; (c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that party; (d) is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict; (e) is not a member of the armed forces of a Party to the conflict; and (f) has not been sent by a State which is not a Party to the conflict on official duty as a member of the armed forces.’

208. See Major, M.-F., Mercenaries and International Law, 22 Georgia JI & Comp. L (1992) pp. 103 at p. 114Google Scholar.

209. See Livre Blanc sur les Agressions du Régime Raciste d'Afrique du Sud contre La République Populaire d'Angola (Luanda, Ler & Escrever 1987)Google Scholar.

210. ‘TRC Report’ Vol. 2, supra n. 26,.at p. 55.

211. Ibid., at p. 80.

212. Ibid., at pp. 52–55.

213. Ibid., at pp. 60–61.

214. Ibid., at p. 53. In several occasions the UN SC has condemned the illegal occupation of Namibia by South Africa, the illegal use of the Namibian Territory as a springboard for acts of aggression against Angola and legitimized the Angola's support of Namibian Patriots. See for example UN SC Res. 428 (1978) of 6 May 1978; Res. 447 (1979) 28 March 1979; Res. 577 (1985) 6 December 1985.

215. Ibid., at pp. 67–68.

216. See also the ruling of the South African Constitutional Court on illegitimacy of pardons for perpetrators of war crimes in international armed conflicts, supra n. 172.

217. The jurisdiction of Namibia could in theory be asserted based either on the so-called protective principle (covers acts against a State's security interests committed by aliens abroad) or the so-called passive personality principle (covers acts against a State's nationals committed by aliens abroad). However an argument a contrario could be made since the victims although of Namibian origin had not yet a Namibian citizenship at the time the crimes were committed, but certainly such jurisdiction can be asserted under the principle of universal jurisdiction. In the Eichmann case, Israel asserted jurisdiction based on universal jurisdiction for crimes committed during WWII against Jewish people prior to existence of Israel. ‘Attorney Gen. of Is. V. Eichmann’, 36 ILR (1968) pp. 18, at pp. 273–276Google Scholar. See also Munkman, A., ‘Eichmann Case: Summary’, 36 ILR (1968) pp. 5, at 5–7Google Scholar.

218. Noting that the practice of states is not however uniform in recognizing a binding effect on this principle. In the absence of a specific treaty, countries tend to disregard it. See Lopez, D.E., ‘Not twice for the same crime: How the dual sovereignty doctrine is used to circumvent non bis in idem’, 33 Vanderbilt JTL (2000) p. 1263Google Scholar. See also Costa, J.E., ‘Double jeopardy and non bis in idem: principles of fairness’, 4 Univ. Calif. Davis JIL & Pol. (1998) p. 181Google Scholar.

219. See text of the Protocol on Extradition signed by Angola and South Africa within the framework of the Southern Africa Development Community (SADC) on 3 October 2002 at <http://www.sadc.int>.

220. South Africa and Angola are also bound in addition to the Protocol on Extradition by a Protocol on mutual legal assistance on criminal matters, since 3 October 2002, signed within the framework of the Southern Africa Development Community, which specially regulates cooperation of States Parties on matters of legal assistance in criminal matters. See text of the Protocol in <http://www.sadc.int>.

221. Kalshoven, F., ‘State Responsibility for Warlike Acts of the Armed Forces’, 40 ICLQ (1991) p. 827CrossRefGoogle Scholar; See also Freeman, A.V., Responsibility of States for Unlawful Acts of their Armed Forces (Leiden, A. W. Sijthoff 1957)Google Scholar; Sassòli, M., ‘State Responsibility for Violations of International Humanitarian Law’, 84 IRRC (2002) pp. 401–434Google Scholar.

222. See Hague Convention (IV) Respecting the Laws and Customs of War on Land, supra n. 74.

223. See Report of the Secretary-General pursuant to para. 2 of the Security Council Res. 808 (1993) on the Establishment of the UN International Tribunal for the Former Yugoslavia, Doc. S/25704, 3 May 1993, para. 42 (noting that: ‘The Nurnberg Tribunal recognised that many of the provisions in the Hague Regulations, although innovative at the time of their adoption were, by 1939, recognised by all civilized nations and were regarded as being declaratory of the laws and customs of war. The Nuremberg Tribunal also recognised that war crimes defined in Art. 6(b) of the Nuremberg Charter were already recognised as war crimes under international law, and covered in the Hague Regulations, for which guilty individuals were punishable.’).

224. The UN SC has on several occasions demanded that South Africa fully pays compensation to Angola for its acts of wanton destruction and seizure of civilian objectives, and killing of innocent civilians in Angola in blatant violation of the laws of war. See UN SC Res. 387 (1976) 31 March; Res. 428 (1978) 6 May; Res. 447 (1979) 28 March; Res. 454 (1979) 2 November; Res. 475 (1980) 27 June; Res. 545 (1983) 20 December; Res. 546 (1984) 6 January; Res. 567 (1985) 20 June; Res. 571 (1985) 20 September; Res. 574 (1985) 7 October; Res. 577 (1985) 6 December; Res. 602 (1987) 25 November; Res. 606 (1987) 23 December.

225. See generally on war reparations, Dolzer, R., ‘The Settlement of War-related claims: Does International Law Recognise a Victim's Private Right of Action? Lessons after 1945’, 20 Berkeley JIL (2002) p. 296Google Scholar.