相关规则
South Africa
Practice Relating to Rule 142. Instruction in International Humanitarian Law within Armed Forces
Section B. Obligation of commanders to instruct the armed forces under their command
South Africa’s Revised Civic Education Manual (2004) states:
93. Articles 86 and 87 of Additional Protocol 1 (1977) to the Geneva Conventions (1949) clearly stipulate the responsibilities of military commanders in relation to the LOAC. In essence it stipulates that the inclusion of LOAC during training as well as its application during armed conflict (operations) is and remains a command responsibility. These responsibilities include:
a. Overall Responsibility in Military Operations (General Command Responsibility)
i. The commander of all forces engaged in military operations has the general responsibility for ensuring respect for the LOAC.
ii. General command responsibility extends to all land, sea, air areas of military operations and movement and location.
iii. General command responsibility covers the whole command chain as well as the various evacuation channels.
iv. General command responsibility extends to the civilian field in so far LOAC requires this, particularly with regard to co-operation with civilian authorities.
v. Appropriate guidance (e.g. rules of engagement) shall be given to subordinates with regard to specific circumstances:
(1) to assure uniform action and behaviour; and
(2) to prepare subordinate commanders (particularly those with independent missions) to take themselves the measures required by the situation.
b. Responsibility of Every Commander
i. Respect for the LOAC is a matter of order and discipline. As with order and discipline, LOAC must be respected and enforced in all circumstances.
ii. The commander him/herself must ensure that:
(1) his subordinates are aware of their obligations under LOAC …
Law of Armed Conflict Training. As a command activity every commander holds full responsibility for proper training in LOAC within his/her sphere of authority. The overall aim of LAOC training is to ensure respect for LOAC by all members of the armed forces, irrespective of their function, time, location and situation. It remains incumbent on commanders to ensure that LOAC is included in the programmes for military instruction. This will ensure that the required competences, mindset and responsibilities for LOAC are established with their subordinates. 
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, § 93.
South Africa’s LOAC Teaching Manual (2008) states:
5.2 Command Responsibility
General Command Responsibilities
[1977] Additional Protocol I article 87 places the following responsibilities on commanders with respect to members of the armed forces under their command and other persons under their control:
- To disseminate knowledge of the LOAC and to ensure members under their command are aware of their obligations under the LOAC.
This responsibility placed upon commanders by Additional Protocol I article 87[] is a personal responsibility. This means that[:]
- The commanders themselves must ensure that their subordinates are aware of their obligations under the LOAC and the necessary measures are taken to prevent violations of the LOAC;
- They can be held personally accountable and liable if all members of the armed forces under their command are not aware of their obligations under the LOAC, do not respect the LOAC and if all necessary measures are not taken to prevent violations of the LOAC.
Command Responsibilities Regarding Training
The LOAC provides that instruction in LOAC must be included in military training and that every commander holds full responsibility for the proper implementation of LOAC training within his sphere of responsibility. ([1949] Geneva Conventions I to IV common article 1, [1977] Additional Protocol I article 1 and the Hague Convention for the Protection of Cultural Property in the event of Armed Conflict dated 14 May 1954 article 4.)
The overall aim of LOAC training is to ensure full respect for the LOAC by all members of the armed forces, irrespective of their function, time, location and situation.
The LOAC must be included in all the military instruction programmes. Every commander holds full responsibility for proper LOAC training within his sphere of authority. LOAC training is therefore an essential part of command activities. (Geneva Convention I article 47, Geneva Convention II article 48, Geneva Convention III article 127, Geneva Convention IV article 144, Additional Protocol I articles 83 and 87 and the Hague Convention for the Protection of Cultural Property in the event of Armed Conflict dated 14 May 1954 article 25.)
It is accepted that it is not possible to teach everything to everybody. The trainer must only teach what the trainees need to know for their function. Every commander must determine what his subordinates need to know on their respective levels.
It is of the utmost importance that LOAC training be fully integrated into normal military training and activities. Integrated training requires no additional time or special material, but it does allow for the active participation of the trainees. LOAC training must be integrated from basic training to ensure the instinctive and automatic correct responses in terms of the LOAC with trainees. Lectures should only be given as an introductory measure, to cover specific technical aspects and to train specialist staff. Emphasis must be placed on practical application of the principles in the conduct of combat.
Members must be trained by their own superior officers, as:
- Members look up to them for guidance;
- It enhances the relationship of mutual trust;
- It assists commanders to meet their responsibilities regarding training in the [LOAC]; and
- It ensures that members regard the LOAC as also being their responsibility as integrally part of their task as a soldier, and not a separate “legal subject” for the lawyers to be concerned about.
Main problems that commanders need to solve are:
- Adequate training before entering into the operational theatre.
Conclusion
Commanders have personal responsibilities in terms of the LOAC to:
- Disseminate knowledge of the LOAC and to ensure members under their command are aware of their obligations under the LOAC;
Military commanders have an obligation to ensure that legal advisers are, at all times, available to advise them at the appropriate levels on the application of the LOAC and the appropriate instruction to be given to the armed forces on the subject.
The LOAC places a duty on a commander to include LOAC instruction in military training within his sphere of responsibility and to ensure that all members under his command are adequately trained in the LOAC. 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 5, pp. 239, 242–243 and 246–247.
South Africa’s Defence Act (2002) provides:
[The Chief of Defence Force] is responsible for the training of members of the Defence Force to act in accordance with the Constitution and the law, including customary international law and international agreements binding on the Republic. 
South Africa, Defence Act, 2002 § 14(i).
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. 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 1982. He has also been indicted on three counts of attempted murder.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-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. …
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
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. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
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. 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 “ra[c]ist regime” in the exercise of their “right of self-determination”. 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. …
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
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 1977 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. …
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. …
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 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 those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. 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].
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 [South-West Africa People’s Organisation] and the ANC [African National Congress] 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. 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. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. 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.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed. 
South Africa, Supreme Court, Petane case, Judgment, 3 November 1987, pp. 2–8.
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
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 those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. 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 of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, pp. 21–22.
[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, p. 66.