Practitioners of military law in South Africa gathered in Pretoria alongside colleagues from other countries for the first international conference on military law in the country.
The conference theme of “contemporary military law” was explored with sub-themes relating to international military law, human rights law, operational law and administration of military justice.
The objectives of the conference – to raise public awareness of the importance of military law in a democracy and to stimulate interest in academic research in this specialised field of public law to strengthen the development of South African military law – were successfully met with a number of international and local academics and military professionals presenting research papers, according to the South African National Defence Force (SANDF).
The conference was officially opened by SA National Defence Force Chief, General Solly Shoke. In his opening address he welcomed the opportunity provided by the conference for South African military lawyers to benchmark local approaches with that of other armed forces. He also expressed the wish for the conference to provide a basis for evaluating whether any amendments to military and other legislation may be necessary to empower commanders to instil and maintain military discipline.
Justice Sandile Ngcobo, retired Chief Justice of the Constitutional Court, delivered the keynote address analysing South African and international legal developments relating to the institutional independence of military courts. His presentation concluded with the outlining a template which may be used to evaluate institutional independence of South African military courts to ensure impartiality of its military judges.
The remainder of day one, under the sub-theme international military law, unpacked issues relating to permissible and legal use of armed force by States and the legal rules governing soldiers during armed conflict.
Professor Sascha-Dominik Bachmann of Bournemouth University presented a paper setting out the implications of so-called “hybrid war” and the offensive and defensive use of “lawfare”, the use of litigation for political purposes aimed at impacting a State’s military operations.
Joel Block of the University of the Witwatersrand examined Israel’s automated Iron Dome Missile Defence System to illustrate issues regarding the uncertain legality of automated systems for aerial defence against missile and rocket attacks and how design choices may be utilised to increase both military efficiency and legality by States using, or intending to use, such systems.
Mark Maxwell, Deputy Legal Counsel to the United States’ Africa Command, delivered a paper unpacking how linguistic imprecision in the use of the term “self-defence” may obscure legal requirements for its use by States and soldiers in different scenarios and proposed alternative precise terminology to ensure military force is used legally in different operational situations.
Colonel Pieter Brits, Senior Lecturer at the Faculty of Military Science of Stellenbosch University, examined the disparate legal regimes regulating the conduct of soldiers in international and non-international armed conflicts under the Geneva Conventions and its Protocols and argued the case for uniform rules in such conflicts to enhance victim protection and clearly direct the conduct of military operations under International Humanitarian Law.
The day concluded with a panel discussion, led by Adama Ndao, acting chief of the Conduct and Discipline Unit at the United Nations Organisation Stabilisation Mission in the Democratic Republic of the Congo (MONUSCO) regarding the regulation, combatting and prevention of sexual exploitation and abuse by peacekeepers during UN peace support operations.
The second day saw Major Vukile Sibiya, lecturer at the Faculty of Military Science of Stellenbosch University, discuss the implications of the Implementations of the Geneva Conventions Act of 2012 for South African soldiers and commanders in both international and non-international armed conflicts.
Doctor Tobie Beukes, senior researcher at the Centre for Military Studies of the Faculty of Military Science of Stellenbosch University, examined the present status of private military security companies under International Law. Captain Gary Muller of the Defence Legal Services Division assessed the legality of the United States’ Strategic Defence Initiative, the so-called Star Wars programme, to determine whether this anti-ballistic missile system complied with the provisions of the Outer Space Treaty of 1967.
The Operational Law sub-theme saw a joint presentation by Professors Louise Jordaan and Nina Mollema, both from the University of South Africa, examining the role of the military in combating human trafficking, while Andre Smit of the Office of the Chief State Law Advisor (International Law) assessed the powers of the SANDF to enforce South African law at sea.
The Human Rights sub-theme included a presentation by Brigadier General (Doctor) Eric Mnisi, Defence Legal Services Division, where he reflected on the correctness and implications of the Constitutional Court decision in 1999 to interpret the Constitution as affording soldiers the right to form and belong to trade unions and called for a reassessment of this position by possible legislative amendment to address what he regarded to be the adverse impact of unionised soldiers on military discipline in the SANDF.
Professor Paul Wambua of the Nairobi University School of Law concluded the Human Rights session by reflecting on lessons to be learnt by the Kenyan and Ugandan armed forces from the manner in which the SANDF accommodates lesbian, gay, bisexual, transsexual and intersex soldiers.
The Administration of Military Justice sub-theme commenced with a presentation by Major General Blaise Cathcart, the Judge Advocate General of the Canadian Armed Forces. He outlined features of the Canadian military justice system, after which Major Keith Reichert, Assistant Chief of Staff (Strategic) on Cathcart’s staff, reported on the Court Martial Comprehensive Review process being conducted to evaluate whether any revision of the Canadian military justice system is required to enhance its effectiveness or legality.
Lieutenant Colonel (Doctor) Michelle Nel, senior lecturer at the Faculty of Military Science of Stellenbosch University, presented a paper identifying what she perceived as the stagnation of Military Law despite a fundamental change in the nature and role of the SANDF after 1994. She called for a broadening of the definition and scope of Military Law and its development by means of research and a sustained legal-academic discourse regarding its principles. The second conference day concluded with a panel discussion regarding cyber warfare led by Doctor Joey Janse van Vuuren (CSIR), Sarel Robertse (Department of Justice) and Brigadier General S. Shezi of Defence Intelligence.
The Administration of Military Justice sub-theme concluded on day three with a number of topical presentations. Doctor Ronald Naluwairo, acting Deputy Principal of the Makerere University School of Law in Uganda, analysed the historical foundation and development of Uganda’s military justice system and the manner in which it protects human rights, concluding most reforms have been cosmetic and have not gone far enough to entrench protection of human rights in the Ugandan armed forces.
Professor Aifheli Tshivhase, Associate Professor and Head of Department (Criminal and Procedural Law) at Nelson Mandela Metropolitan University considered the uncertain place of South African Military Courts in the hierarchy of courts in order to determine the appropriate yardstick by which to measure institutional independence and so determine the level of remuneration required to ensure South African military judges have sufficient financial security as an indicator of institutional independence.
Captain Dingaan Mathebula of Defence Legal Services Division conducted a case law analysis to consider the manner in which South African military courts determine whether pre-trial irregularities result in actual and substantial prejudice to military accused. Lieutenant Colonel Rikus Slabbert, Officer in Charge of the Defence Legal Services’ School of Military Justice, provided an overview of the role of the School of Military Justice, with Brigadier General Reuben Mbangatha following with an overview of the evolution and development of the South African Military Justice System from 1910 to present day.
Brigadier General Thipe Matjila, Defence Legal Services, concluded presentations with an overview of the status of, and progress with, the Military Discipline Bill which, once promulgated into law by Parliament, will further reform South African Law by adding to the revisions introduced in 1999 when a new system of military justice was introduced to align it with the provisions of the Constitution.
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