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DEFENCE PORTFOLIO COMMITTEE
21 August 2007
PROHIBITION OR RESTRICTION OF CERTAIN CONVENTIONAL WEAPONS BILL [B7-2007]: DEPARTMENT'S RESPONSE TO PUBLIC SUBMISSIONS
Chairperson: Ms T Tobias (ANC)
Documents handed out:
Audio recording of meeting
Legal advisors for the Department of Defence, South African National Defence Force (SANDF) and Parliament gave their responses to the submissions that were made on the Prohibition or Restriction of Certain Conventional Weapons Bill during the public hearings. Several amendments had been suggested. Members interrogated the reasons behind these amendments, and expressed their concern that some of the proposals might require South Africa to make a declaration on the Convention that was the background to the Bill.
Specific points were raised by the Department on the definitions of blinding laser weapon, component part, and the deletion of the definitions of explosive ordnance and unexploded ordnance, as these made reference to Protocol V that had not been ratified by South Africa. The Department believed that there was no need to define conventional weapons. Amendments were proposed to the definition of military objective, procure, and transfer. There was substantial discussion on the extraterritorial jurisdiction and Members agreed that there was a need to look further at Clause 3(2) and the possible deletion of 3(1)(d). Members further discussed Clause 6 and the words "restricted" and "prohibited", and the effect of the difference in wording between the Convention and this Bill. It was agreed to remove the word "clearly" from Clause 6(2)(viii) that referred to objects of a religious nature. Clause 8(2) would be deleted as it was inconsistent with the prohibition on use of laser weapons in 8(1). The Department suggested that an exemption clause be added to address concerns and to allow the Minister to exempt some organs of state so that they could still conduct research and counter-defence on prohibited weapons. It was suggested by Members that the transport of such weapons must also be specifically covered. The legal advisors would need to revert to the Committee on the declarations and reservations. Members were concerned that there were indeed financial implications to the Bill. The Parliamentary Legal Advisors debated whether provisions contained in the Prohibition of Mercenary Activities Bill should be included also in this legislation, but this suggestion did not find general favour. The Bill would be debated by Members at a future meeting.
Prohibition or Restriction of Certain Conventional Weapons Bill( the Bill): Responses to Public Submissions
The Chairperson emphasised the fact that the Committee had little time. She asked the Committee Secretary, Ms M Balie, to read the summary of proceedings of the public hearings (see attached document). The comments could broadly be divided into a number of categories. Concerns included that the Bill needed to be clear on how new weapons technologies could be accommodated, non compliance of State Parties, the concern that the Bill could limit the weapons capabilities of the State, and the need for protection of intellectual property. The Bill also needed to clarify what would happen if the rules were transgressed, and to provide more clearly for delegation of powers and the impact of declarations by States on the impact of the Protocol that was the background to the Bill. .
Response by Department of Defence (DOD)
Mr Siviwe Njikela, Director of Legal Advice: Department of Defence, gave a brief response to the issues. The Department was encouraged by the response, since the submissions were broadly in support of the Bill, and suggested improvements.
He commented specifically on the points raised in relation to various clauses, as follows:
Mr Njikela noted that the definition of the ‘blinding laser weapon’ had been raised. The concerns were that perhaps the term ‘laser’ should also be in the definition, and that the definition should be wider.
The definition of a ‘component part’, specifically a ‘component part’ of a prohibited weapon, was also an issue. The industry was concerned that this definition was wider that it should be as it may prohibit even weapons having dual use. The Department disagreed. Mr Njikela pointed out that the definition referred to essential and integral parts, which in their view limited the definition. The Department would not like to insert the word "specifically" as suggested, because they would have to prove the component was designed with the specific intention of being used in a prohibited weapon. This would create a loophole, as it would be impossible to prosecute someone using a component part in a prohibited weapon. The Committee was asked to consider leaving the definition as it currently appeared in the Bill.
The next definitions of ‘explosive ordinates’ and ‘unexploded ordinates’ were dealt with together. The Department agreed with the submission that the definitions should be deleted entirely. Both terms referred to Protocol V, which had not been ratified by Parliament, and the terms were in fact included in error, assuming that the Protocol would have been ratified by the time the Bill appeared.
There was a proposal that ‘conventional weapons’ needed to be defined. Mr Njikela explained that there was already legislation dealing with the definition of conventional weapons. The National Conventional Arms Control Act dealt with conventional weapons in a broader sense, and there was a suggestion that that definition should be taken from that Act and placed in the Bill. This, in the view of the Department, would make the Bill broader than it should be. This Bill was intended to be confined to certain types of weapons, and the word conventional was not an essential part of the Bill.
Mr Njikela suggested that for the definition for ‘military objective’ the proviso should be deleted, as there should not be any military objectives among civilians.
The definition of ‘procure’ included the word ‘discovery’. There were concerns that this word could criminalise people and that the definition should be worded in a way to mean surrender of those weapons. There was also the suggestion that the word ‘means’ be deleted and replaced by ‘includes’, as the word ‘means’ gave too restrictive and exhaustive a definition.
In the definition of ‘transfer’ it was also recommended that the reference to restricted weapons be deleted completely, as the Department could only prohibited transferral of prohibited weapons and not restricted weapons.
Chapter 1: Objects and Application, Extraterritorial application and jurisdiction
Mr Njikela said that the intention with this section of the Bill was to ensure that South Africans, companies registered in South Africa or permanent residents were still subject to South African law, no matter where they might be at the time. The Department therefore wished extend their jurisdiction beyond their borders. This Bill, referred to any other person who was arrested in the Republic, regardless of citizenship or residency. The Department suggested that that reference be deleted. The Department cited an example of a Nigerian national using a blinding laser weapon against a Zimbabwean who was on holiday in South Africa. Prosecution could become a problem.
Mr Shah interjected to ask what the situation would be if both Nigeria and South Africa were signatories on the Convention and had mutual protocols.
Mr Njikela replied that the principle in international law was that local would apply in a country's territory and jurisdiction. However there were such things as extradition treaties between states. In terms of extradition treaties, South Africa would have the power to arrest that person and extradite him to another country. There was scope within the existing legislation to deal with trans-national crime. What the department was trying to do was to extend their jurisdiction to everybody.
The Chairperson asked how, if another country did not legislate on conventional weapons, South Africa could extradite their nationals. A convention did not necessarily translate in local law; it was about the moral obligation and not necessarily about the legal obligation to legislate.
Mr Shah then gave another example. He asked what legal action could be taken against a foreign national, over whom South Africa had no jurisdiction, selling a prohibited weapon in South Africa.
Mr S Dladla, Chief Director, Defence Policy, DOD, said that the intention behind this section of the Bill was to extend jurisdiction beyond the South African borders insofar as South African citizens or residents were concerned. However, if a foreign national were to come to South Africa and violate this legislation, South Africa had a right to take action as it was within South Africa’s territorial jurisdiction.
Mr Njikela continued by saying that the Convention that stated that no country could interfere with other country’s affairs. Within this context the Department had been careful when wording this clause.
Chapter 2: Prohibitions or Restrictions, Offences and Penalties
Mr Njikela made reference to the Clause 6(1)(c)(i), and said that there was a grammatical concern with the word ‘or’, expressed in the submissions, but the legal advisors thought the clause read well.
The Chairperson was of the view that there was inconsistency. The sub-heading read ‘Mines, booby-traps and other devices’, whereas the text read ‘or other devices’. This lacked consistency.
Mr Njikela commented on a further concern. This clause was related to a previous issue regarding military objectives, and it was suggested that the phrase ‘or in the close vicinity of’ be deleted. This section would then impose restrictions on the use of restricted weapons so that they would only be used for military objectives and reduce injury to civilians.
Mr S Ntuli (ANC) asked that the terms ‘restricted’ and ‘prohibited’ were used separately, and wanted to know what was implied by the word ‘other’.
Mr Njikela replied that the Bill had tried to do two things -to prohibit certain weapons and restrict certain weapons
Mr Ntuli mentioned that explosive ordnance was mentioned on more than one occasion throughout the Bill. He wanted to know what were the implications of that, when the Protocol had not been ratified yet.
Mr Njikela replied that Protocol V had not been not been ratified by South Africa yet, therefore they had no obligation to uphold it. It was assumed that by the time the Bill was finalised this Protocol would have been ratified. The Department suggesting removing this reference as there were no obligations binding on South Africa in respect of the explosive ordnances.
The Chairperson thought that one of the suggestions was to leave the legislation open-ended in case Protocol V was ratified. However, the Committee was not privy to the discussions on how this was progressing. There were concerns about the financial implications should the legislation be passed, and then need amendment, but she indicated that the cost would not be too high in terms of reconvening public hearings, if Protocol V was ratified. She did not think that legislation should be left open-ended.
Mr Njikela agreed.
Dr G Koornhof (ANC) asked if any of the legal advisors had considered whether the amendments discussed went beyond or fell short of what was in the Convention. If so, he asked whether South Africa would make a declaration or statement on the Protocol.
The Chairperson asked if there was a legal obligation to follow the terms of the Convention word by word in the Bill.
Dr Koornhof said he had a related question. If clause 6(1)(c) used the words "on or in close vicinity of a military objective" and the Protocol was worded as "not on or directed against a military objective" he wondered if there was a problem and if the wording of the clause was adding to or deleting from the Protocol. If so, then he thought South Africa would have to make a declaration on the Convention.
Ms N Mnyikiso, Senior State Law Advisor, Office of the State Law Advisor, responded that there were two ways to enact a Convention. The direct way followed the Convention word for word. The indirect way would follow the principles but could expand on the wording, and this was acceptable as long as the local legislation remained within the ambit of the Convention.
Dr Koornhof reiterated his earlier question, and said this question could be answered at the next meeting.
Mr Njikela commented that it South Africa would not be able to undercut the obligations of the Convention. It could, however, add to the obligations. By removing that phrase, the Bill had made the obligations stricter.
Mr Njikela then continued to Clause 6 (2)(viii), which referred to objects that were clearly of a religious nature. There was a submission that the use of the word "clearly" added an additional obligation to these objects that did not appear in the other sub-clauses. The Department agreed that the word ‘clearly’ should be removed from the clause.
Under Clause 8 (2), Mr Njikela said a submission had been received that the Bill must define ‘laser systems’. The Department had considered this and had suggested that the sub clause (2) be entirely deleted. The Bill was to regulate laser weapons, not laser systems, and it was preferable to restrict it to these only.
Mr Shah asked whether, instead of deleting, the sub clause should be qualified and retained.
Mr Njikela replied that it could be a contradiction because blinding laser weapons were prohibited in sub-clause (1) and this sub clause seemed to suggest that they could be used.
Chapter Four: General Provisions
Mr S Dladla explained that the Department was now suggesting that another provision be added under the heading ‘Exemption’. This would be for the purposes of research and development. The Minister would therefore exempt certain organs of State or their agents for the sole purposes of them conducting research on prohibited weapon. Certain weapons that this country might prohibit could be used against the country in a war situation, and in order to counter such attacks research must take place on the weapons, although they were not to be used.
There was a lot of discussion about future protocols in the United Nations, and the question was how South Africa would deal with them. The Department suggested that any future protocols be covered by dealing with ratification in the regulations. This would remove the burden of having to amend the Act every time another Protocol was ratified.
The Chairperson stated that this issue was raised in the previous meeting. The Committee was in fact not confined to this Bill, but it was a discussion of principle. The Constitution dealt with the role of parliament, and this Bill should not undermine the role of the legislature.
Mr Dladla emphasised that the intention was not to take away the powers of parliament.
Mr Shah remarked that the Committee would need to evaluate the proposed new clause dealing with exemptions. Although he could understand the spirit in which the suggestion had been made, it needed to be placed within the framework of the Protocol.
Mr Shah also wanted to know if there has been a thorough study on the capability of the country’s neighbours..
Lieutenant General J Jansen van Rensburg, Chief of Corporate Staff, Department of Defence, replied that South Africa did monitor their neighbouring countries in their region, continent and elsewhere.
Dr Koornhof commented that caution must be exercised if there was any intention to try to leave legislation open-ended and he personally would not like to see this done.
He asked why the proposed exemption clause only referred to prohibited weapons and not restricted weapons.
Mr Dladla responded that the reference to restricted weapons meant that those weapons could be used under certain conditions. They were not banned completely, could be exported and imported and had no limitations where research and development were concerned. Prohibited weapons should not be in the country, but this provision would allow for certain organs of State to possess them for research and development purposes.
Dr Koornhof also asked about the transportation of certain weapons, which was not covered in the Bill.
Mr Dladla responded that the element of transporting weapons had been assumed. The Department could consider mentioning it specifically.
Dr Koornhof asked that if there was to be an amendment to Chapter 4, would this mean that South Africa had to make a declaration.
Mr Dladla replied that the Convention did not deal with the issue of declarations clearly. The Department was not too sure on the issue of declarations, and needed to look into it further.
Mr Shah noted that the United States of America had added declarations and reservations.
Mr Shah referred back to the matter of component parts. He wondered if the definition, which included the word ‘integral’, was sufficient, and if an individual could claim that the part was an ‘integral’ part for another weapon in his possession.
Mr Njikela replied that the definition as a whole covered all aspects. There was a suggestion to insert ‘specifically’, but this would require proof of the individual’s intentions.
Dr Koornhof sketched a hypothetical scenario. In future there might be a strategic defensive package, and another country placed an order with a defence company in South Africa for a certain component part, which perhaps all relevant legislation and the National Conventional Arms Control Committee (NCACC) had approved. He wanted to know if the definition of a component part prohibits such a transaction.
Mr Dladla responded that if the component part was intended for a restricted weapon then such a transaction would be approved. However, when it came to prohibited weapons, no South African company could deal in such weaponry, except if it fell under the ‘exemption’ proviso, which, as stated before, would apply only for research and development purposes.
The Chairperson commented that South Africa was the only country that was legislating on this Protocol. This tied in with the previous questions on the capabilities of other countries. Some of the issues in the Bill were very sensitive in terms of their own security. When these Conventions were acceded to, Members of Parliament were not present. Other countries would, before signing, first consult and find out whether this would affect their own security, and then draw up declarations to ensure their stability. It would have been ideal if the Committee could first have seen all the other declarations, before discussing this Bill, in order to make informed decisions.
Mr Shah agreed with the Chairperson. The Committee also did not know the motivations behind those declarations.
Dr Koornhof added that the declarations were available and they were clear. This Committee would require advice whether it should recommend to the Executive to add declarations or reservations. The United Kingdom had made both declarations and reservations on Article 6 as well as the United States, China, Canada and Italy.
The Chairperson concurred, and stated that a letter would be sent to the Minister of Defence on this issue.
Mr L Diale (ANC) wanted to know what type of monitoring was taking place on neighbouring countries.
The Chairperson replied that Members could not request information on military operations; all the Committee was asking was advice.
Dr Koornhof said that it was noted that there were no financial implications, but the SANDF had to inform all their members, and the South African public had to be informed.
The Chairperson replied that there were definitely financial implications, as public communication must take place.
Dr Koornhof asked what would happen if a state or a non-state actor used these weapons.
Mr Nthuthuzelo Vanara, Parliamentary Legal Adviser, responded that the question was deeply rooted to the nature of the Convention. Those who were signatories were bound, and although non-signatories were not bound by the Convention, it was hoped that they would abide by it.
Parliamentary Legal Office Responses to the Public Submissions.
Mr N Vanara gave his suggested amendments and responses to submissions on the Bill.
There was a suggestion that the preamble must indicate that additional protocols might be added in future to provide for technological advances in weapon development. Mr Vanara said this was not possible. The object of the Act was simply to enact the terms of the Convention into national law. Protocol V could not be included as it was not yet binding on South Africa.
Mr Vanara felt that it was not necessary to define anti-personnel mines. Clause 4 of the Bill excluded anti-personal mines from the Bill.
He said that he had limited knowledge of a blinding laser weapon.
Mr Shah had a concern that the definition of the blinding laser weapon referred to it being harmful to the ‘naked-eye’. He wanted to know if it was not harmful to the rest of the anatomy or physiology. If so, then it should be named as injurious to the body.
The Chairperson commented that perhaps an addition could be made to this definition. However, she pointed out that these weapons were specifically designed to cause blindness. Any other laser weapons, she thought, was also covered.
Mr Shah believed the definition should not be limited.
Dr Koornhof mentioned that Protocol IV clearly stated what a blinding laser weapon meant.
The Chairperson sought clarity on an incendiary weapon, as she thought it might cover laser weapons.
Colonel Nigel Apsey, Deputy Director Arms Control Policy: Department of Defence, responded that an incendiary weapon was designed to set fire to things. Such devices had, for instance, been used during World War II.
Mr Shah understood from this description that it would not cover a laser weapon. However, his argument was that laser weapon systems could also be injurious to the rest of the human anatomy and physiology.
The Chairperson reminded Members that the Bill was dealing with conventional weapons agreed to by the state representatives.
Col. Apsey agreed with that the Bill should confine itself to the conventional weapons covered by the Convention.
Mr Vanara replied that more attention should be given to the essence of the definition rather than the mechanism. As long as the addition of the word ‘laser’ would not defeat the purpose of the Bill, he did not see a problem.
Mr Vanara agreed with the concern raised about the definition of component part, but disagreed with the suggestion to add the word ‘specifically’, as it would be difficult to prove.
Mr Njikela proposed that the Committee should leave the definition as stated currently.
Mr Vanara agreed with the suggestion that the definition of explosive ordnance be deleted.
Mr Vanara said that there was a suggestion that the use of the words "another person" under the definition of "export" could be interpreted as excluding juristic persons. This was not correct, in light of the Interpretation Act, read with Clause of the Bill.
In regard to a "laser system" Mr Vanara suggested that this could be defined, in view of the previous debate on ‘blinding laser weapon’.
Mr Vanara proposed that the definition of "Military Objective" needed attention. Other issues were raised in the clauses of the Bill that had a direct impact on this definition of military objective. He cited Clause 7(d), and said he did not understand the meaning of the exception.
The Chairperson thought that it was clear.
Mr Vanara felt that the current wording could create confusion, and suggested it should be substituted with ‘to attain military advantage’.
Mr Shah remarked that this clause meant that a person could not set fire to any plant cover or forest, unless it was used for military cover.
General Jansen commented that this aimed to ensure that the environment was not destroyed during warfare.
Mr Vanara noted that the experts were happy with the provision.
Mr Vanara thought that clause 6(1)(c) gave the impression that civilians could be seen as a military objective. He suggested an amendment.’
The Chairperson replied that it had earlier been suggested that clause 6(1)(c)(i) had be amended. It addressed the question of protecting civilians.
Mr Vanara stated that unfortunately when he had prepared his submission he had not had an opportunity to see the Department's submissions.
The Chairperson took note of this, but remarked that she had asked all legal advisors to work together.
Mr Vanara recommended that provision be made in the Bill for exemption by the Minister, that could be used, for instance, for those companies whose business was in de-mining, destruction of mines, unexploded munitions and ordnances. He suggested they would have to apply to the Minister before engaging in such activities. This would add a measure of control.
Mr Shah asked whether in each instance they would have to apply.
The Chairperson asked why it was suggested that the licensing power be removed from the National Conventional Arms Control Committee (NCACC) to the Minister.
Mr Dladla replied that there was no removal of the power of licence. Some companies dealt in de-mining of anti-personnel mines, and the Minister had allowed them do so. If these companies wanted to transfer these mines to other countries, they would need to go through the NCACC for export licences.
Application of the Act and jurisdiction
Mr Vanara agreed with the concerns raised and suggested that the current provisions contained in the Prohibition of Mercenary Activities Bill be used in this Bill also. Those provisions adequately addressed the concerns.
The Chairperson commented that the definitions of juristic person in the Prohibition of Mercenary Activities Bill differed to those used in the Convention. She believed the definition of a ‘juristic person’ was sufficient.
Mr Shah thought that Clauses 3(1)(a) and (b) were quite clear. However, sub clause (c) was not clear.
Mr Dladla indicated that the entire sub clause 3(1)(d) was to be deleted. Any person in South Africa could be charged with violating this law.
The Chairperson asked on what basis could these persons be convicted.
Mr Dladla responded that Clause 9 on Offences and Penalties set out the nature of the offences. It would include both natural persons and juristic persons.
Mr Shah thought that sub clause 3(1)(d) was restrictive, but wondered whether total deletion was correct. He suggested that perhaps the clause should specify whether the crime was committed inside or outside South Africa.
The Chairperson replied that the Committee could deal with that at another meeting.
The Chairperson wanted clarification whether deletion of Clause 3(1)(d) would have the result that no foreigners who contravened this legislation could be charged.
Mr Vanara replied that this was his point. He believed that if sub clause (d) was removed, then there would be a problem. The Bill did not address South Africans who were participating in armed conflicts in countries that were not signatories to the Convention. The Prohibition of Mercenary Activities Bill adequately dealt with that situation, although it was not yet in force. He suggested that similar provisions be included here too.
Major General Segomotso Mmono Head of Legal Services: Department of Defence, replied that the intention was not to include everything in this Bill. He believed that clause 3(2) adequately covered the concerns raised.
The Chairperson agreed that it was sufficient and that it covered any other South African.
Mr Shah thought that perhaps 3(1)(d) could have been open to misinterpretation because it was not qualified in any way.
The Chairperson thought that it was sufficient in that it was regulating South Africans.
Mr Vanara commented that sub clause 3(1)(d) extended jurisdiction to persons who were on South African territory. Clause 3(2) dealt with actions that were prohibited but were committed outside South Africa.
Mr Dladla remarked that 3(2) was intended to extend jurisdiction to all South Africans, permanent residents or juristic persons. The deletion of 3(1)(d) would have the opposite effect. Jurisdiction was in any conferred in respect of all South African territory.
Mr Njikela thought perhaps that the legal advisors needed to work on sub clause 3(2) and on Clause 2 and address the question of foreigners who committed crimes against South Africans, permanent residents or juristic persons.
Mr Vanara was concerned that the Bill did not cover South African citizens serving in other countries that were not signatories.
Mr Njikela said that this was one of the points. Another Bill already provided that no South African may enlist in other military service unless specifically authorised to do so, and the criteria were fully set out, as well as the international obligations of South Africa. He suggested that perhaps the drafters should look at the provisions of that Bill.
Mr Shah doubted that the Prohibition of Mercenary Activities Bill adequately dealt with the issues mentioned. He suggested that the Committee might have to engage also with the proposed legislation dealing with cooperation between Commonwealth countries. He said it was possible for the NCACC to give permission for a South African to serve in the United Kingdom military, where he might use a weapon that South Africa, but not the UK, had prohibited.
The meeting was adjourned.
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