Laws of war must be obeyed: Mgwebi

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The Law of Armed Conflict places a duty upon states to respect, and ensure respect, for its underlying legal instruments in all circumstances, South African National Defence Force Chief of Human Resources, Lieutenant General Derrick Mgwebi says.

“This also places a legal responsibility on commanders of forces engaged in military operations to ensure the enforcement of the Law of Armed Conflict in all circumstances,” he told participants in this year’s Senior Workshop on International Rules Governing Military Operations (SWIRMO), now underway at the Military Academy at Saldanha.
“To limit disproportionate destruction in times of Armed Conflict, whilst still allowing fully, for the application of military force, we as commanders and planners and executors of military operations need to know and understand the constraints imposed by the Law of Armed Conflict, and then rigorously implement and adhere to those stipulations,” he added.
“You will realise that the law does not unduly restrict the available options of the disciplined and professional military planner and executor; indeed you will leave the programme with the ability to employ military force, whilst still adhering to the international law governing our conduct. In this, you will achieve what we as disciplined military professionals ultimately strive for, a balance, a synergy, between the principles of military necessity and humanity.
“Appropriate guidance, such as Rules of Engagement, naturally based on the prescripts of law, 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.
“Compliance or non-compliance will have a profound impact upon the national and international reputation of the armed forces we represent. Indeed, compliance has everything to do with the professionalism of our armed forces and States we represent.
“The object of war is not only to win the war, but also to ultimately attain peace. It would therefore be folly to focus so much on the military objective, so as to undermine the credibility of a nation once peace is obtained.”

The SWIRMO, the fifth to date, is being co-hosted by the International Committee of the Red Cross (ICRC) and SANDF with around 70 senior officers from different armed forces across the globe attending. It is the first time the event is being held outside Europe.

The workshop comes just days after Minister of Defence and Military Veterans Lindiwe Sisulu presented the Geneva Conventions Bill [B10-2011] to the National Assembly’s Portfolio Committee on Defence and Military Veterans. Cabinet approved the Bill last September. A statement released at the time said the Bill seeks to incorporate the provisions of Geneva Conventions of 12 August 1949 and their additional protocols of 1977 into domestic law. “The Geneva Convention provides for, among other things, for the protection of wounded and sick combatants in the field irrespective of their nationality,” the statement noted. The Bill has been some time in the making and was scheduled for submission to Parliament in terms of the Department of Defence Strategic Plan for the years April 2010 to March 2013.

Department of Defence Director: Legal Advice Siviwe Njikela told the committee last week South Africa became a State Party to the Geneva Conventions (GCs) in 1952. In 1995 SA became a State Party to the two Additional Protocols (APs). He explained the GCs and their APs were part of International Humanitarian Law (IHL), which was a set of rules that sought to limit the effects of war on combatants and non-combatants and regulated the use of weapons during an armed conflict. The GCS required that all State Parties enacted domestic legislation in line with what the GCs prescribed.

The conventions made provision for two types of breaches, namely, grave breaches and other breaches. Grave breaches included torturing, wilful killing and inhumane treatment, biological experiments, wilfully causing great suffering, destroying or confiscating property, forcing people to fight in the army of a hostile power and attacking civilians. The Bill criminalises all breaches of the Conventions and their Additional Protocols and provide for penalties depending on the nature of the breach. It was also an offence to fail to act while under duty to do so, in order to prevent a grave breach to occur, irrespective of where in the world it occurred.

Extra-territorial jurisdiction in terms of the GCs extended the jurisdiction of the South African courts beyond the borders of the country. This meant that if South Africa became aware that the GC had been breached anywhere in the world, it could start a legal process. It could hear cases committed “anywhere by anybody”, the minutes of the meeting kept by the non-governmental Parliamentary Monitoring Group records.

The Bill also provides for the protection of red cross, red crescent emblems subject to the provisions of SA Red Cross Society Act.



Njikela noted the Bill has no diminishing influence on any provision of the implementation of the Rome Statute of the International Criminal Court Act, 2002 (Act No 27 of 2002) and is “another instalment of the RSA’s continuing endeavours to ensure that the effects of armed conflicts were minimised internationally.”