PROPOSALS REGARDING A WEAPON REVIEW PROCESS IN SOUTH AFRICA (PART 1)

Abstract

The purpose of this article is to put forward submissions regarding the implementation of a weapons review process in compliance of South Africa’s obligations under Additional Protocol I (hereinafter “API”) Article 36. Article 36 requires each state party to determine whether the employment of any new weapon, means or method of warfare that it studies, develops, acquires or adopts would, in
some or all circumstances, be prohibited by international law. Article 36 does not specify how such a legal review should be implemented or conducted. Thus this article puts forward proposals regarding both the substantive and procedural aspects
of a review of the legality of weapons, means and methods of warfare that the authors submit best befits the South African context.
A background regarding the legal limitations placed upon the use of certain weapons, means and methods of warfare and an explanation of South Africa’s obligations regarding national implementation of a weapons review process, is given in paragraph 1 so as to create an understanding as to why it is necessary for the Republic of South Africa to implement a process to review the legality of weapons, means and methods of warfare. Before the implementation of a weapons review process can be discussed, the subject matter of such a review must first be ascertained. Thus paragraph 2 contains a discussion regarding the definition of the term “weapons, means and methods of warfare” and a determination of which weapons shall form the subject matter of legal reviews. No specific manner of implementation is contained within API and thus it is at the discretion of the state in question, in this case South Africa, to adopt the necessary measures to implement this obligation. In this regard, paragraph 3 contains submissions regarding the status of the review body within the state hierarchy and its method of establishment. This paragraph also contains an explanation of the process by which South Africa acquires its weapons. The legal scope of the review process is dealt with in paragraph 4. Within this
paragraph, the place of both treaty-based law and customary international law (“CIL”) in the South African legal system is discussed. Furthermore, the treaty-law and customary international law rules binding upon South Africa regarding limitations of specific weapons and general weapons limitations are enumerated and the paragraph ends with a discussion of the Martens Clause.