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 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 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)).
- 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 [South African National Defence Force] 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.
1.4 Different Types of armed Conflict and those bound by LOAC
To whom does the LOAC apply?
Application: Parties to the Conventions
Realise that this article [i.e. common Article 2 of the 1949 Geneva Conventions] stems from 1949, and that the Geneva Conventions have since become customary international law, thus applicable to all states of the world.
Note should be taken [of] the provisions of Common Article 2 to the Conventions, which determines that provisions of the Conventions shall also apply in peacetime. This stipulation places a duty on States to train people in peacetime in the IHL and to enter into agreement with other States regarding the applicability of the Conventions between them.
The manual also states:
Protection of Marked Cultural and Religious Objects (Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954)
- Military Measures (Article 7)
- Parties to the Convention must, in times of peace, introduce measures into their military regulations and instructions to ensure observance [of] this Convention and to foster in their members a spirit of respect for the culture and cultural property of all peoples.
The manual further states:
Engagement and Retaliation Policy.
- The engagement and retaliation policy of the commander (as contained in his operational plan) will guide the conduct of operations.
- During operational planning at Brigade or higher levels, a commander will have time to carefully consider all the relevant aspects applicable to the conduct of operations, such as:
- The area for the operation;
- The rules of engagement;
- The tactical situation;
- Options regarding weapons; etc.
- Such a commander will then establish an engagement or retaliation policy. This policy will be based on his analysis of fundamental factors of the LOAC, …
- The engagement or retaliation policy will define target priorities and specify allowable weapons and types of engagement, for example, the number of artillery rounds that may be fired without reference to the commander. It may also prohibit the engagement of certain targets. The policy may change as operations progress but should initially be issued with orders for the operation and the rules of engagement. It will guide the conduct of operations, particularly the employment of air and other supporting elements.
- However, members on the battlefield, will all too often be faced with the need to make quick decisions in difficult circumstances such as while under fire or while the victim of an ambush. Aspects such as proportionality and the avoidance of unnecessary suffering will carry less weight under such circumstances. Once the firing has ceased, reason can prevail.
- If all members have not been well trained or are undisciplined, it may be impossible to adhere to these principles.
- The crux of the issue is that States have a duty to put commanders and soldiers onto the battlefield who are well trained and confident in their ability to conduct operations in complex and often confusing circumstances of modern armed conflict.
The manual also 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
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. ( Geneva Conventions I to IV common article 1,  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.
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.
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 Prevention and Combating of Torture of Persons Act (2013) states:
Offences and penalties
(4) No exceptional circumstances whatsoever, including but not limited to, a state of war, threat of war, internal political instability, national security or any state of emergency may be invoked as a justification of torture.
General responsibility to promote awareness
9. (1) The State has a duty to promote awareness of the prohibition against torture, aimed at the prevention and combating of torture.
(2) Without derogating from the general nature of the duty referred to [in] subsection (1), one or more Cabinet members, designated by the President, must cause programmes to be developed in order to –
(a) conduct education and information campaigns of the prohibition against torture aimed at the prevention and combating of torture;
(b) ensure that all public officials who may be involved in the custody, interrogation or treatment of a person subjected to any form of arrest, detention or imprisonment, are educated and informed of the prohibition against torture;
(c) provide assistance and advice to any person who wants to lodge a complaint of torture; and
(d) train public officials on the prohibition, prevention and combating of torture.
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 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
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.
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. …
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.
In 2014, in its initial report to the Human Rights Committee, South Africa stated:
The SANDF [South African National Defence Force] has …, since 1994,engaged in an active training programme to inculcate the principles of International Humanitarian Law that specifically addresses issues of torture.