Human Rights and HIV-Testing in the South African Armed Forces: Whose Rights Are Paramount?

Abstract

Human rights and HIV-testing is a complex issue, especially where it pertains to the military. In this article an attempt is made to answer the question of whose rights are paramount—the right of the individual to serve in the military, to be promoted, and to be deployed versus the state's obligation to ensure that the armed forces are operationally effective and capable of safeguarding the interests of society, or the international community who they have been commissioned to safeguard. These issues are both complex and highly controversial from a rights perspective. Across the world most militaries test recruits and service members for HIV as part of their overall health assessment, which may affect enlistment, promotion, and deployment. Numerous court cases have challenged these practices, claiming that they constitute a violation of human rights. In this article, we examine the legal and human rights debates regarding HIV-testing in the military with reference to various international court cases. Here after the impact increasing numbers of HIV/AIDS compromised persons have on the organizational and operational effectiveness of armed forces are assessed. The conclusion is reached that while individual human rights should be respected, they should not weigh more heavily than those of the larger community whose safety, security, and well-being are at stake.

Lindy Heinecken was formerly a researcher and Deputy Director of the Centre for Military Studies (CEMIS) at the South African Military Academy. She now serves as Professor of Sociology at Stellenbosch University where she lectures in political and industrial sociology. The main focus of her research is in the domain of armed forces and society where she has published widely on a range of issues including gender integration, civil-military relations, military unionism, HIV/AIDS and security, and more recently on the impact of private security on the military profession. She holds a MSocSc from the University of Cape Town and a Doctorate from the Department of War Studies, Kings College, University of London. She serves on the Council of the Inter-University Seminar on Armed Forces and Society (USA) and the International Sociological Association's (ISA) Armed Forces and Conflict Resolution working group and is Vice-President of the South African Sociological Association.

Michelle Nel was a military law practitioner at various units in the South African National Defence Force and holds the rank of lieutenant colonel. She now serves as lecturer in criminal law, military law, and interpretation of statutes at the Faculty of Military Science of Stellenbosch University, situated at the South African Military Academy. The main focus of her research is based on sentencing practice in the military law environment and has published on issues of military discipline and military unionism. She holds a LLM from the University of South Africa and is currently in the process of completing her LLD through the University of South Africa.

Notes

1. Report of the UNAIDS Expert Panel on HIV Testing in the United Nations Peacekeeping Operations, 28–30 November 2001, Bangkok, Thailand.

2. South African Security Forces Union and Others v. Surgeon General and Others, High Court of South Africa, Transvaal Provincial Division, Case no 18683/07 (unreported).

3. According to information obtained from the Health Centre West Coast, Military Skills Development (MSD) members undergoing basic military training at SAS (South African Ships) Saldanha are tested on arrival to make provision for members seroconverting after preemployment testing.

4. In March 1997, the Cabinet made a decision that the public service, irrespective of the department, would not test for HIV (see the Law Commission Report, Project 85, Second Interim Report on Aspects of the Law relating to AIDS: Preemployment HIV testing, April 1998). The founding affidavit of SASFU (Hlatshwayo 2007: 18) reports on a resolution by Cabinet on April 16, 1997 called “Physical fitness in the SANDF – Testing for HIV” where Cabinet made a decision that no exclusions from appointments to positions in the public service will be made where a person is HIV-positive, except in the case of the SANDF where exceptional physical fitness is required. On August 5, 2004 the Minister of Health, Dr. Manto Tshabalala-Msimang denied that there is a policy of preemployment testing within the SANDF.

5. The Management of Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS) in the DoD. This document came into effect on May 1, 2001.

6. This does not include civilians in the DoD.

7. SG/R/104/10/P “Revision of Health Classifications in the SANDF.”

8. The “G” factor denotes the ground factor. This factor describes the physical activities that a member can perform as part of his or her employment within the expectations of his or her post. A G1 category indicates that a member is healthy and can participate in any physical activity. There is no recognizable disease process and no restriction due to injury. A G2 category indicates that there is a recognizable disease process but still does not impact the member's ability to partake in military physical activities. It indicates that the disease is under control, with simple first line treatment regimen. A person becomes G2 with the description of chronic medication. The G factors then deteriorate to G2, G3, and G4 where a medical condition, resulting in a person only being able to perform administrative or sedentary duties. The “K” factor indicates the geographical area where an individual can or cannot be deployed and must be related to the requirements of his post. This also indicates the level of care that a person should be able to access, based on the medical diagnosis expressed through the “G” factor. Where a K1 factor is allocated a person can be deployed anywhere, anytime without any health care facility in the vicinity. According to the mentioned document this would be a situation where a system of peer support or “buddy aid” is the only care and support available. It could also mean that the member must be self-supportive. Only people who are classified as G1 and G2 can be classified as K1. A K2 factor is indicated where a member can be deployed only within the borders of the RSA. This would be in the instance where a member would have to be within a reasonable proximity of primary health care. G1, G2, and G3 categories can receive a K2 category. The “K” category then deteriorates to a K4 factor where a person is only deployable within the borders of the RSA within the proximity of tertiary health care. A GP of G5 classification will be indicated where a person is medically unfit for any current medical duty (DoD 2008: 2).

9. An operational status color code is used to indicate whether a member is operationally deployable. Green indicates that he/she is fit for operational duties according to his/her medical category. A yellow category indicates that a member is unfit for operational duties and not deployable and usually indicates an incomplete health assessment. Red indicates a permanent inability to be deployed operationally externally, e.g., being HIV-positive.

10. It is of interest to note the interpretation clause of the Defence Act (section 3), which determines that in the event of an inconsistency between the Defence Act and any other Act, except the Constitution, the Defence Act will prevail.

11. Section 59 of the Defence Act 42 of 2002 sets out the grounds for discharge from the SANDF. Relevant here is that the services of a member is terminated where in terms of section 59(1)(e) the “Surgeon-General or any other person authorised thereto by him or her issue a certificate to the effect that due to medical or psychological reasons, such member is permanently unfit to serve in the Defence Force. Section 59(2)(c) determines that the services of a member of the Regular Force may be terminated in accordance with the applicable regulations where “on account of unfitness for his or her duties or inability to carry them out efficiently, irrespective of whether such unfitness or inability is caused by such member's ill-health not amounting to a condition referred to in subsection (1)(e).”

12. (2002) AHRLR 119 (NaIC 2000).

13. One could read in here the Labour Act of Namibia.

14. [1995] HCA 63.

15. In Commonwealth of Australia v. Human Rights and Equal Opportunity Commission and Anon. (1998).

16. [1994] 3 FC 38.

17. 2000 (1) SA 1CCC.

18. There are some contradictory opinions on this. The UN has indicated that there is not sufficient evidence to prove empirically that HIV-positive individuals cannot withstand the strain; although it is a widely held belief amongst various defense forces that it is indeed the case. No reliable studies in this regard could be found. One would have to ask oneself if you are willing to risk the chance of exacerbating an individual's condition just because the contrary has not been empirically proven. Would it not be too late? The supplementary affidavit of the Surgeon General asserted that the setting of medical standards is an extremely complex decision that impacts every individual who has a career in the defense force. The interests that are weighed against each other in the setting of these standards are important. The military context does not allow for any margin of error and therefore the SANDF follows a prudent approach in setting the standards, remaining unconvinced that stressors will not aggravate an individual's condition. The applicant argued that exercise may in fact be beneficial to an HIV-positive individual but that may be losing sight of the fact that apart from exercise, soldiers may also be deprived of food, sleep, and water and may be exposed to hostile climates in one setting. One should therefore take the cumulative effect into consideration. It is also argued that those with HIV do not necessarily have a greater chance of contracting an exotic disease on deployment, but that his or her chance of actually fighting the disease successfully with a suppressed immune system is not good. This will result in extremely high medical costs to be paid by the taxpayer.

19. Due to the fact that one is dependent on policy, one could not argue a justifiable limitation of the rights in terms of section 36 of the Constitution. Section 36 would only be applicable when the limitation was justified in terms of legislation. Since no legislation exists regarding preemployment HIV-testing that applies to the SANDF, section 36 was not applicable.

20. This fact has been confirmed by the Medical Officer at Area Health Unit, Langebaanweg.