Practice Relating to Rule 142. Instruction in International Humanitarian Law within Armed Forces
South Africa’s LOAC Manual (1996) provides that it is “imperative that every member of the SANDF [South African National Defence Force] has a good knowledge of, and is able to apply, the law of armed conflict (LOAC)”. It also states: “In the circumstances of combat, soldiers may often not have time to consider the principles of the LOAC before acting. Soldiers must therefore not only know these principles but must be trained so that the proper response to specific situations is second nature.”
South Africa’s Revised Civic Education Manual (2004) states:
In the circumstances of combat, soldiers may often not have time to consider the principles of the LOAC before acting. Soldiers must therefore not only know these principles but must be trained so that the proper response to specific situations is second nature.
South Africa’s White Paper on National Defence of 1996, which presents the defence policy of the Government of National Unity, provides:
31. Education and training programmes within the SANDF [South African National Defence Force] are a cardinal means of building and maintaining a high level of professionalism. In this regard, the [interim] Constitution [of 1994] provides that all members of the SANDF “shall be properly trained in order to comply with international standards of competency”.
35. Education and training will also play an essential role in developing the political and ethical dimensions of military professionalism. To this end, the Minister will oversee the design and implementation of a civic education programme on “defence in a democracy” …
36. The mission of the civic education programme is to instil respect amongst military personnel and other members of the [Department of Defence] for the core values of a democratic South Africa through appropriate education and training. These values derive principally from the Constitution. They include respect for human rights, the rights and duties of soldiers, the rule of law, international law, non-partisanship, non-discrimination, and civil supremacy over the armed forces.
37. The programme will cover the following subjects: … international law on armed conflicts …
38. This programme will extend to all members of the [Department of Defence] but will necessarily be tailored according to function and rank …
41. The SANDF, together with the International Committee of the Red Cross, is currently developing a comprehensive curriculum on international humanitarian law and international law on armed conflict.
In a paper entitled “Presentation of the South African Approach to International Humanitarian Law” produced in the late 1990s, the South African Government stated:
It is acknowledged today that the armed formations which now comprise the South African National Defence Force (SANDF) were all guilty, to a greater or lesser extent, of human rights abuses during the apartheid era. None of these forces were trained and orientated to serve a democracy, nor to apply International Humanitarian Law in their operations …
One of the major initiatives was a clear commitment by the Government in its White Paper on Defence … [One of the statements therein] was the Government’s undertaking … that it was prepared to institutionalise International Humanitarian Law in the military’s training.
The other initiative was the process to ensure that the SANDF incorporated International Humanitarian Law into its training. This initiative was in fact launched during the transitional period just prior to the April 1994 elections …
The SA Army has … held a successful instructor’s course during August 1997 where 55 instructors were qualified, using material supplied originally by the ICRC. This was followed by an instruction for all Commanders and formations to start training in IHL. Furthermore, the SA Army has drawn up curricula for all the personnel development courses, starting from the basic military course up to the senior staff course. Training has already commenced on most of these courses.
In a training order issued in 1997, the South African Department of Defence stated:
In September 1997, the Minister of Defence authorised the Civic Education Guidelines and programme, after the Parliamentary Standing Committee on Defence had reviewed the contents and provided their approval … All members of the Department of Defence are to receive training in civic education as contained in the Guidelines, as approved by Parliament … The introduction of [the LOAC Manual (1996)] has already been commenced with under separate instruction and with the assistance of the representative of the International Committee of the Red Cross (ICRC). The training in International Humanitarian Law/Law of Armed Conflict which has already been introduced is to be harmonized with the complete civic education programme … Arms of the Service are also to introduce International Humanitarian Law/Law of Armed Conflict on those courses, other than formative courses, where it is appropriate, such as operational courses.
In a speech in 1998, the South African Minister of Defence stated: “ sees the implementation of our Civic Education Programme. The programme will assist our members in becoming familiar with: … International Humanitarian Law”.
In 1999, during a debate in the Sixth Committee of the UN General Assembly on the UN Decade of International Law, South Africa stated: “States should work to instil a culture of compliance [with rules of IHL], in particular by training soldiers in humanitarian law.”
The Report on the Practice of South Africa refers to an opening address at a UN human rights seminar by the South African Deputy Minister of Defence in which he emphasized that training for the armed forces should cover both international human rights standards as well as IHL, since the armed forces were likely to intervene in situations not covered by the 1949 Geneva Conventions or the 1977 Additional Protocols. He referred to the 1990 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.
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’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.