Practice Relating to Rule 139. Respect for International Humanitarian Law
South Africa’s Revised Civic Education Manual (2004) states:
The respect for and unconditional application of the LOAC by all members of the SANDF [South African National Defence Force] is of paramount importance to ensure the retention and maintenance of its moral and ethical standards.
South Africa’s LOAC Teaching Manual (2008) states:
1.1 Nature, status and purpose of LOAC [law of armed conflict] in accordance with international and domestic law.
LOAC in RSA [Republic of South Africa] Law
The RSA is a party to the  Geneva Conventions and [1977 Additional] Protocols and is therefore bound by [them]. It is also bound by other treaties that deal with the use of force etc, to which it has become a party. …
For a large part, LOAC forms part of our International Law, not domestic (internal law). The effects of our involvement in the sphere of LOAC are, however, becoming more and more evident in our domestic law – for instance the Anti-mercenary Act.
- The Constitution of the RSA.
- The Constitution of the Republic of South Africa, 1996 is the highest law in South Africa and [s]tates that:
National security must be pursued in compliance with the law, including international law (sec198(c)).
The security services must act, and must teach and require their members to act, in accordance with the law, including customary international law and international agreements binding on the Republic (Sec199(5)).
- Section 232 of the RSA Constitution requires compliance with international customary law as long as such law is not inconsistent with the Constitution or other national (domestic) law.
- The SANDF [South African National Defence Force] has, at all times, to be structured and managed, and will have to act, as a disciplined military force.
- There thus exists a constitutional obligation on the SANDF to abide by LOAC. It may also not deviate in any armed conflict from the requirements of International Law that is binding on the RSA. The national executive, in particular, may not contravene the law of armed conflict, or cause or require the SANDF or its members to commit unlawful acts of aggression.
- International Treaties.
- As a signatory to international treaties governing the waging of war, these treaties that place specific obligations upon the members of the SANDF bind South Africa.
- Failure to observe these conventions and protocols is unacceptable in South Africa and also makes the individual SANDF members liable for breaches thereof. It is therefore imperative that each and every member of the SANDF has a good knowledge of, and can apply LOAC.
Where does the LOAC fit into the South African Legal System? South African law is divided into domestic law and international law.
- International law
- International law is the law applicable between nations and which is accepted by those nations as binding on them.
- International law is based on
- Treaties, ie agreements between nations to respect and adhere to previously identified principles and to ensure that their subjects also respect and adhere to these principles;
- International customary law; and
- Ius cogens[.]
1.2 Reasons for compliance with LOAC and basic principles thereof.
Legal Considerations. Apart from the abovementioned interests that are addressed by compliance with the LOAC, it must be borne in mind that non-compliance will have legal implications in that it will result in criminal as well as civil liability for both the offender and their commanders. South African law, including the Constitution, places a duty on the SANDF and its members to comply with the LOAC. After all has been said, irrespective of whether you agree with the principles of the LOAC, it is the law, it is binding on us all, and it must be complied with.
- Compliance with the LOAC is required by law and non-compliance is punishable.
1.3 Relationship between LOAC and Human Rights Law and Fundamental Protection Provided under LOAC
The following comparison can be made between Human Rights Law and the LOAC:
- The obligation is equally strong on States and individuals to ensure compliance with LOAC.
The manual also states:
4.4 Internal and Non-International armed conflict
The difference in approach between International Human Rights Law and the LOAC could be indicated by the following:
- States and individuals are responsible for ensuring compliance.
The manual further states:
Criminal Liability / Responsibility under LOAC
The command of the armed forces shall be subject to an internal disciplinary system which enforces compliance with the law of war.
To effectively respect the law of war, armed forces need generally applicable rules.
Armed forces cannot be taught different ways of behaviour for international and no[n]-international armed conflicts.
5.2 Command Responsibility
 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;
- The commanders themselves must ensure that their subordinates respect the LOAC; …
Through control, the commander makes sure that his subordinates respect and ensure respect for the law of war within their sphere of responsibility[.]
As was said in the beginning of the course, respect for the LOAC is a matter of order and discipline. As with discipline, the LOAC must be respected and enforced in all circumstances.
The LOAC places a duty upon states to respect and ensure respect for “the instruments” in all circumstances. This also places a legal responsibility on all commanders of forces engaged in military operations to ensure the enforcement of the LOAC in all circumstances.
Appropriate guidance, eg rules of engagement, must be given to subordinates to cover specific circumstances. Such guidance will[:]
- Ensure consistent action and behaviour; and
- Prepare subordinate commanders, especially those in command of independent missions, to take the necessary measures required by the situation by themselves.
Commanders are bound by similar rules of engagement in a non-international conflict.
[emphasis in original]
South Africa’s Constitution (1996), as amended to 2003, states:
199. Establishment, structuring and conduct of security services.
(1) The security services of the Republic consist of a single defence force, a single police service and any intelligence services established in terms of the Constitution.
(2) The defence force is the only lawful military force in the Republic.
(3) Other than the security services established in terms of the Constitution, armed organisations or services may be established only in terms of national legislation.
(5) The security services must act, and must teach and require their members to act, in accordance with the Constitution and the law, including customary international law and international agreements binding on the Republic.
[footnote in original omitted]
South Africa’s Implementation of the Geneva Conventions Act (2012) states:
2. Objects of Act
The objects of this Act are to –
(a) enact the Conventions into law as is required by section 231(4) of the Constitution;
(b) ensure that the Republic complies with the Conventions; and
(c) ensure prevention of, and punishment for, breaches of the Conventions.
3. Applicable law
In addition to the Constitution and the law, any court in the Republic hearing any matter arising from the application of this Act must also consider and, where, appropriate, may apply –
(a) conventional international law;
(b) customary international law; and
(c) comparable foreign law.
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  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.
In 2004, in the Basson case before the Constitutional Court of South Africa, Justice Sachs stated in his concurring opinion:
Section 232 of the Constitution states:
“Customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.”
The rules of humanitarian law constitute an important ingredient of customary international law. As the International Court of Justice [ICJ] has stated, they are fundamental to the respect of the human person and “elementary considerations of humanity”. The rules of humanitarian law in armed conflicts are to be observed by all states whether or not they have ratified the Conventions that contain them because they constitute intransgressible principles of international customary law. The ICJ has also stressed that the obligation on all governments to respect the Geneva Conventions in all circumstances does not derive from the Conventions themselves, but from the general principles of humanitarian law to which the Conventions merely give specific expression.
In its judgment in the Basson II case in 2005, the Constitutional Court of South Africa stated:
South Africa was a party to the Geneva Conventions. Yet as the ICJ [International Court of Justice] pointed out in Nicaragua v United States of America
, even if South Africa had not been a party, it would have been obliged in the 1980s to respect the [1949 Geneva] Conventions in all circumstances “since such an obligation does not derive only from the Conventions themselves, but from the general principles of humanitarian law to which the Conventions merely give specific expression”.
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
[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
In 1999, during a debate on the UN Decade of International Law in the Sixth Committee of the UN General Assembly, South Africa stated:
The rules of international humanitarian law should also be subject to constant revision, in the sense not of making new laws but of ensuring compliance with existing ones. States should work to instil a culture of compliance.
In 2010, in a statement at the Tenth Annual Regional Seminar on the Implementation of International Humanitarian Law in Pretoria, South Africa’s Deputy Minister of the Department of International Relations and Cooperation stated:
I am convinced that this seminar will contribute to Africa’s ongoing efforts to develop a culture of respect for non-combatants and for prisoners of, and persons affected by war. Discussions and debate need to be followed by proper implementation of IHL and its instruments. Following from the implementation of IHL, we should also continue to publicly deplore any violations of International Human Rights and Humanitarian Law, and also bring to justice the perpetrators thereof.
I am also convinced that effective implementation of IHL enhances a rules-based international system, which directly ensures the protection of the peoples of the world against breaches of IHL and impunity, and ultimately contributes to the creation of a better world for all.
In view of this argument, I am sure you will agree that the region should also equally prioritise the implementation of IHL and its relevant instruments. We therefore need to ensure that all relevant role-players are properly sensitised to and advised on the importance of IHL, not only during times of conflict, but especially in underlining and supporting the very essence of our socio-economic upliftment by creating a conducive environment for lasting peace, security and stability.
In 2011, in an opening statement at the Eleventh Annual Regional Seminar on the Implementation of International Humanitarian Law in Pretoria, South Africa’s Deputy Minister of International Relations and Cooperation stated:
Member States on the African continent have shown a steady support for ratifying international instruments pertaining to IHL. However, we all acknowledge that more can and should be done. In this regard, I remain convinced that the effective implementation of IHL enhances a rules-based international system, which directly ensures the protection of civilians against breaches of IHL and impunity, and ultimately contributes to the creation of a better world for all. We therefore need to ensure that all relevant role-players are properly sensitised to and advised about the importance of IHL, not only during times of conflict, but also during times of peace. Lastly, we should also continue to publicly express our dissatisfaction about serious violations of International Human Rights and Humanitarian Law and remain unwavering in our resolve to bring to justice the perpetrators thereof.
Dr [Kellenberger], President of the ICRC highlighted in a statement in 2009 during the commemoration of the 60th Anniversary of [the 1949] Geneva Convention[s], that the polarisation of international relations and the humanitarian consequences of what has been referred to as the “global war on terror”, has posed a huge challenge for proponents of IHL. This, and the proliferation and fragmentation of non-state armed groups, and the fact that some of them reject the premises of IHL, remains a challenge today, particularly as IHL is tested as an adequate legal framework for the protection of victims of armed conflict.
Dr [Kellenberger] finally concluded that the essential spirit of the Geneva Convention[s] – to uphold human life and dignity even in the midst of armed conflict – is as important now as it was more than 60 years ago. It is a sentiment that the South African Government still shares and I also believe it is something that you as participants also believe in, hence your participation here today. We should remain committed to the promotion of the ideals and principles contained in international humanitarian law, as this is in the interest of all of us.
In 2012, in an opening statement at the Twelfth Annual Regional Seminar on the Implementation of International Humanitarian Law in Pretoria, South Africa’s Deputy Minister of International Relations and Cooperation stated:
I am pleased to see that this year’s Regional IHL Seminar is dedicated to acknowledging the tremendous work undertaken by the International Humanitarian Law Committees in various countries. These Committees play a vital role in advising and assisting governments on appropriate and coordinated measures relating to the ratification, implementation and dissemination of IHL in their respective countries.
In 2012, during a debate in the Sixth Committee of the UN General Assembly on the 1949 Geneva Conventions and their 1977 Additional Protocols, a statement of the delegation of South Africa was summarized by the Sixth Committee in its press release as follows:
[T]he need for States to respect international humanitarian law, whether in international or non-international armed conflict, had clearly been demonstrated throughout the previous century and in current times, as well. South Africa, this year, had incorporated the four Geneva Conventions and its two protocols into domestic legislation.
[South Africa] strongly supported the efforts of the ICRC to strengthen compliance with international humanitarian law. Such support was exemplified by South Africa’s hosting the annual ICRC international humanitarian law seminar for the Southern African Development Community and co-hosting the upcoming regional conference for Africa, aimed to protect persons deprived of their liberty during non-armed conflicts[.]
Through its mission in Geneva, … South Africa was also chairing the Open-ended Intergovernmental Working Group, with a mandate to consider the possibility of elaborating an international regulatory framework on the activities of private military and security companies. However, [South Africa] was concerned about the role mercenaries, private military and security companies had in undermining compliance with international humanitarian law during armed conflicts. To that end, South Africa had adopted domestic legislation to address the problem.