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DEFENCE PORTFOLIO COMMITTEE
08 August 2007
PROHIBITION OR RESTRICTION ON USE OF CERTAIN CONVENTIONAL WEAPONS BILL: PUBLIC HEARINGS
Chairperson: Ms T Tobias (ANC)
Documents handed out:
Audio recording of meeting
The Committee continued its public hearings on the Prohibition or Restriction on use of Certain Conventional Weapons Bill, which was drawn up in compliance with South Africa's obligations as a signatory to the Convention on Prohibition or Restriction on the Use of Certain Conventional Weapons.
The South African Catholic Bishops Conference supported the Bill, but sought clarity on certain definitions. It also suggested that certain exceptions were not noted, and also said there was no provision for destruction of weapons forfeited. Members discussed whether the definitions used in the National Conventional Arms Control Act would be preferable, felt that it was also necessary to protect the intellectual property of these weapons, as South Africa would not totally disarm, and discussed the extraterritorial implications for South African citizens. Some Members felt that the legislation should not ban research into and loss of knowledge about these weapons. They agreed that clauses dealing with destruction should be inserted into the Bill.
The Institute for Security Studies was in general support of the Bill, seeking only a few minor clarifications on definitions, and recommending that the Bill be amended to allow for inclusion of further Protocols. The Bill should also be clarified in respect of extraterritorial application, and joint or combined military operations. The Institute also recommended adopting Protocol V on the Explosive Remnants of War. Members' queries related to whether research and intellectual property should be banned, whether the penalties were regarded as sufficient, and the problems inherent in amending the Bill to recognise future Conventions and Protocols.
South African Catholic Bishops Conference Submission
Mr Mike Portier, Research Coordinator, South African Catholic Bishops Conference, stated that the Conference strongly supported the Bill and thought it was a good effort to bring peace and civilized standards to the world. However, the Conference was concerned that some of the definitions in the Bill were unclear, including those for "export", "military objective", "items clearly of a religious nature", and "remotely delivered mines". Furthermore, the Conference was concerned that the Bill did not allow for exceptions in which the Convention would not apply in civilian areas, and that there was no provision for the destruction of forfeited weapons.
Ms Ntombi Mnyikiso, Senior State Law Advisor, stated that, in regard to the definition of "export" the meaning of persons in that definition was the standard definition used in this type of legislation, and it included juristic persons. Any corporation, council, government or individual would be included.
Mr Portier stated that the broader interpretation contained in the National Conventional Arms Control Act (NCACA) would be preferable.
Mr Siviwe Njikela, Legal Advisor, Department of Defence, stated the Bill focused on certain weapons and that the definition in NCACA was too wide for the narrow scope of this Bill.
Mr Portier stated that the Conference was just looking for a broader definition as a point of clarity.
Mr Nthuthuzelo Vanara, Parliamentary Legal Adviser, suggested that there was no need to repeat the definition because it was defined in the NCACA.
The Chairperson stated that ordinary citizens might not know the NCACA and it was important to look at all opinions on the definition at this point in the process.
Mr S Ntuli (ANC) stated that it was important to use practical definitions.
The Chairperson noted that the other definitions were also dealt with in the NCACA.
Mr O Monareng (ANC) stated that the current definition of export would protect the government from liability in peacekeeping operations. He felt it was also necessary to protect the intellectual property of these weapons because South Africa could not be expected to totally disarm.
Mr Portier stated the Conference was not suggesting a total ban on armies and militaries completely but stated that South Africa should concentrate on building peace and for this reason it was important to minimise conditions leading to war. This Bill was attempting to do so, and this was why the Conference was broadly in support of it.
Dr G Koornhof (ANC) asked if the Conference would prefer a definition of conventional weapons that included research and development, or if that capability should be banned under the Bill.
Mr Portier stated that the Conference was just seeking a definition clear to ordinary people and soldiers, and stated that the definition would in any event ban only those weapons named in the Convention. He stated that the intention of the Convention was to prohibit the most horrific kind of weapons, not regular conventional weapons.
Mr J Schippers (ANC) asked what the extraterritorial implications were for South African citizens.
Mr Portier answered that if a South African citizen was in another territory he or she would be subject to this law, and it was not an invasion of their rights. Mr Portier stated that the issue of storage and disposal had not been answered.
The Chairperson noted that those issues had been raised in the other submissions.
Mr Monareng stated that banishing these weapons did not mean that the components of those weapons could not be put to other uses. If the legislature took the enforcement power too far there was a danger of loss of knowledge about these weapons.
Mr Portier answered that under the Convention, these weapons should not be used at all and this meant they should be destroyed. There was no suggestion that there should be a ban on research in these areas. The antipersonnel mine legislation had a procedure for weapons destruction, and he suggested that there should be addition of a clause to this Bill to cover it as well. Weapons could be stolen so it was dangerous to have a stock pile as a target.
Mr Schippers stated that another presenter had suggested adding more police powers to the act and asked if the Conference had any specific suggestions on how to do that.
Mr Portier answered that the Conference was hesitant to get involved in this type of detail. These weapons were not widespread and therefore there was a possibility that there may not be the need for a separate inspector, but he was not really qualified to comment.
Mr Monareng stated that he was impressed by the opinion of the Conference and agreed it would be wise to insert a clause on destroying these weapons in the Bill.
Ms P Daniels (ANC) also agreed that the destruction process must be enshrined in the Bill.
Mr Ntuli stated that the NCACA governs the collection and destruction of such weapons.
Dr Koornhof agreed with the presenter. He added that the Bill did not address the financial implications of the legislation, and that this should be investigated.
Mr Portier stated that it was good publicity for South Africa to destroy these weapons. It was important to specify this as the will of the legislature, although the specifics can be decided by the administration.
The Chairperson noted it was important also to define what was meant by "destroy".
Mr Njikela stated that South Africa had already had this obligation since signing the Convention in 1995. The Bill allowed the Minister of Defence to deal with the destruction issue.
Mr Portier asked why the Bill did not contain a specific mechanism, whereas the anti-personnel mine legislation did have a specific mechanism.
Mr Monareng stated that there was a distinction between the two pieces of legislation because of the different categories of weapons being banned.
Institute for Security Studies (ISS) Submission
Mr Noel Stott, Senior Researcher, Institute for Security Studies, noted that the Institute was in general support of the Bill, seeking only a few minor clarifications. These included the definitions of the terms "anti-personnel mine" and "blinding laser weapon". The Institute also recommended the Bill be amended to allow for the inclusion of future Protocols. The extraterritorial application of the Bill should be clarified. The Bill also currently did not make clear its application to joint or combined military operations. The Institute also recommended adopting Protocol V on the Explosive Remnants of War.
Mr Koornhof asked how far the Bill should go in banning research and intellectual property for the weapons.
Mr Stott stated that research and intellectual property should be included in the Bill.
The Chairperson asked how many countries who had signed the Convention would give up research on these weapons.
Mr Stott answered that the Institute believed that even the transfer of intellectual property rights should be restricted. He suggested that there was no point in doing research if the results were not to be used, and why the weapons should be banned if research into them was still allowed. The Institute suggested that the ban should be worldwide.
The Chairperson stated this was a complex issue because countries may need to continue doing research in case these weapons were used against them.
Mr Schippers asked if the penalties were adequate in the context of international law.
Mr Stott answered that he had not done a comparative study of the penalties but hopefully the penalties would be enough for deterrence.
Mr Njikela stated that the Court would have to interpret the appropriate sentence within the maximum range.
Mr Vanara noted that because Protocol V had not been ratified it could not be included in the Bill.
Mr Stott stated that he was talking about the principle of how to deal with new Protocols.
Mr Njikela stated that it would be possible to reword the Bill to empower the Minister of Defence to include new protocols but there would need to be an amendment to Clause 14. This raised concern because it would amount to delegation of a substantive issue, rather than an administrative one.
The Chairperson stated that this was a function of the legislature which could not simply be turned over to the Executive. The Committee would deliberate further on the issue to try to find a solution.
Mr Monareng stated that South Africa had ratified four protocols in 1995, and these essentially were forming the subject of this Bill. It was impossible to predict if and when South Africa would ratify more protocols.
The Chairperson stated that parliaments around the world must deal with these issues of participation in these conventions. It could be an expensive exercise to amend legislation constantly.
Mr L Diale (ANC) asked if other countries had legislated for the Convention and asked how they were resolving the issue of adding amendments.
Mr Stott replied that very few countries, if any, had national legislation on the issue. This was a new development and it took time to transfer norms into laws. He was pleased to note that the legal advisors would be looking at the issues of combined and joint operations.
The meeting was adjourned.
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