“A Commander's understanding of legal concepts is imperative to combating our current challenges.”
These observations on the importance of following the rule of law during military operations were provided by Dr. (Major General) E. Z. Mnisi, adjutant general of the South African National Defence Forces (SANDF), in his keynote address at the 2020 Accountability Colloquium.
The event, held March 3-5 in Pretoria, South Africa, is the only military conference that exclusively brings together military commanders and legal advisors from across the African Union (AU). States meet to discuss the important role legal advisors provide operational commanders as they address issues on the battlefield.
This was the seventh iteration of the annual conference, sponsored by U.S. Africa Command (AFRICOM) and co-sponsored by SANDF.
“Commanders face challenges on a daily basis,” said Mnisi, describing the relationship between commanders and legal advisors. “Lawyers will take you from point A to point B as they provide technical and expert advice.”
The General then warned his colleagues that “power can go to one’s head; if you make decisions without consulting your advisors, the consequences are high. Leaders are only as good as those who surround them. You can destroy a military without firing a weapon if you take away the command structure and training standards.”
More than 110 African participants from nearly 40 AU member militaries were represented at the 2020 Colloquium. Delegates from the British Army, AFRICOM headquarters and its component units, and the Legal Counsel from the African Union attended the event, with commanders and legal advisors discussing military-legal issues that arise in a wide variety of military operations.
“Would you rather have a lawyer with legal knowledge but no military experience or an uninformed lawyer with military experience?” asked Brig. Gen. B. Mkula, SANDF. “Because one will get you killed, and one will get you arrested.”
In presenting the relationship between operational commanders and military legal advisors from the operational commander’s perspective, Mkula emphasized that militaries need knowledgeable legal advisors who also understand military operations. He stressed that adherence to the laws of armed conflict and human rights was non-negotiable. Commanders need legal advisors whose core competencies embrace an understanding of both the law and military operations.
Col. M. A. Ngoai, SANDF special forces legal support, provided the legal advisor’s perspective as part of a panel with additional legal advisors from the British Army and the U.S. Combined Joint Task Force, Horn of Africa.
“[The SANDF] must act and teach in accordance with the law, as the primary objective of the SANDF is to defend and protect the Republic. International law is the law in South Africa.” Ngoai said.
“Legal advisors’ overwriting duty is robust legal advice which is proactive, not reactive, which rests on the lawyer’s ability to identify issues and to be sensitive to political issues: legal advice the commander can understand and use,” said Brig. Gen. Darren Stewart, head of operational law, British Army Headquarters.
“Training is a two-way street; you do not know what you do not know. You need to understand when to seek advice,” said Stewart, emphasizing that commanders and their staffs must know how to use and employ legal advisors.
U.S. Navy Capt. Christopher J. Greer, a staff judge advocate for U.S. Combined Joint Task Force-Horn of Africa, summarized that being a successful military legal advisor requires “a level of humility, curiosity for military operations, and understanding the needs of the commander.”
“Get in the room, so that the command can recognize the value of having a legal advisor on the team,” said Greer, also noting that most military advisors have to learn the operator’s perspective to provide relevant advice. “[Legal counselors] think in different ways and provide a new perspective. They can express what the rest of the staff will not say.”
In addition to panel speakers, the Colloquium agenda included time for robust discussions amongst the delegates to discuss the issues they face on a daily basis. These talks often centered on gaining a better understanding of the law in particular situations, and the importance of operating within the rule of law.
The consensus was that the military’s credibility was at stake if there was even a perception of operating contrary to applicable laws.
“Once conflict ends, this often leads to local frustrations within the population who feel neglected,” said Ms. O. A. Manugandize, head of special projects, Institute for Security Studies. She added that the frustration could be capitalized on by armed criminal groups.
“The lasting negative impact of militaries neglecting human rights during conflict can prevent a lasting peace,” Manugandize said.
These comments generated further discussion and reinforced Mkula's remarks on the importance of ensuring operations were consistent with law and emphasized human rights.
“Commanders, use your legal advisor in decision making as the essence of the mission is to protect civilians,” Mkula said.
The Colloquium provided a venue for delegates from across Africa to work with other AU military members, and explore new resources, friendships, and networks they can use while facing military-legal issues in their countries.
While delegates brought different perspectives and experiences to the Colloquium, they were unanimous on one issue: Africans need to work together to solve the problems of Africa.
By Sandi Franzblau, AFRICOM Office of Legal Counsel