A productive conference in South Africa

Here is the after-action report on the "1st International Conference on Military Law in South Africa" conducted this week by the South African National Defence Force:

The 1st International Conference on Military Law in South Africa, hosted by the South African National Defence Force and the Defence Legal Services Division over the period 31 October to 4 November 2016 at the CSIR International Convention Centre in Pretoria, has concluded.

The conference theme (“Contemporary Military Law”) was explored with sub-themes relating to International Military Law, Human Rights Law, Operational Law and the 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 regarding the conference theme.

With delegates and presenters arriving for accreditation on Monday, 31 October 2016, the conference was officially opened on Tuesday, 1 November 2016 by Gen Solly Shoke (the Chief of the South African National Defence Force), who in his address welcomed the opportunity provided by the conference for South African military lawyers to benchmark local approaches with that of other armed forces, and expressing the wish that the conference would also 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 a thought-provoking keynote address analysing South African and international legal developments relating to the institutional independence of military courts, and concluded by outlining a template which may be used to evaluate the institutional independence of South African military courts to ensure the impartiality of its military judges.

The rest of the first day (under the sub-theme International Military Law) unpacked issues relating to the permissible and legal use of armed force by States, and the legal rules governing soldiers during such armed conflicts. Professor Sascha-Dominik Bachmann of Bournemouth University in the United Kingdom 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). Mr 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 certain design choices may be utilised to increase both military efficiency and legality by States using, or intending to use, such systems. Mr 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 the legal requirements for its use by States and soldiers in a multitude of different scenarios, and proposed alternative precise terminology to ensure that military force is used legally in these 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 Gevena Conventions and its Protocols, and argued the case for uniform rules in such conflicts to both enhance protection for victims and clearly direct the conduct of military operations under International Humanitarian Law. The day concluded with a panel discussion (led by Ms Adama Ndao – the Acting Chief of the Conduct and Discipline Unit at the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo) regarding the regulation, combatting and prevention of Sexual Exploitation and Abuse by peacekeepers during United Nations Peace Support Operations.

On Wednesday, 2 November 2016 Major Vukile Sibiya (lecturer at the Faculty of Military Science of Stellenbosch University) discussed the implications of the Implementation of the Geneva Conventions Act, 2012 for South African soldiers and their 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 critically assessed the legality of the United States’ Strategic Defence Initiative (“Star Wars” program) to determine whether this anti-ballistic missile system complied with the provisions of the Outer Space Treaty, 1967.

The Operational Law sub-theme saw a joint presentation by Professors Louise Jordaan and Nina Mollema (both of the University of South Africa) examining the role of the military in combating human trafficking, whilst Mr Andre Smit of the Office of the Chief State Law Advisor (International Law) assessed the powers of the South African National Defence Force 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) wherein he critically reflected on the correctness and implications of the Constitutional Court’s 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 South African National Defence Force. Prof Paul Wambua of the Nairobi University School of Law concluded the Human Rights session by reflecting on the lessons to be learnt by the Kenyan and Ugandan armed forces from the manner in which the South African National Defence Force accommodates lesbian, gay, bisexual, transsexual and intersex soldiers.

The Administration of Military Justice sub-them commenced with a presentation by Major General Blaise Cathcart, the Judge Advocate General of the Canadian Armed Forces wherein he outlined the features of the Canadian military justice system, where after Major Keith Reichert, the Assistant Chief of Staff (Strategic) on Major General Cathcart’s staff, reported on the Court Martial Comprehensive Review process presently 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 South African National Defence Force after 1994 and calling 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), Mr Sarel Robertse (Department of Justice) and Brigadier General S. Shezi (Defence Intelligence).

The Administration of Military Justice sub-theme was concluded on Thursday, 3 November 2016 with a number of topical presentations. Doctor Ronald Naluwairo, the 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 human rights are protected therein, concluding that 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 their institutional independence and thus determine the level of remuneration required to ensure that South African military judges have sufficient financial security (as one of the indicators of institutional independence).

Captain Dingaan Mathebula (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 (the Officer in Charge of the Defence Legal Services’ School of Military Justice) provided an overview of the role of the School of Military Justice, where after Brigadier General Reuben Mbangatha presented 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 the 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, 1996).

Upon conclusion of the presentations, Lieutenant General Vusumuzi Masondo (Chief of Staff of the South African National Defence Force) closed the proceedings by providing an overview of some of the highlights of the week, reflecting on certain gains for the South African Military Justice project and thanking the delegates and participants for their contributions.

The conference concluded with a Gala Dinner at the CSIR International Convention Centre, and an informal excursion to interesting and historic sites around Johannesburg and Soweto on Friday, 4 November 2016.