Prohibition or Restriction on the use of Certain Conventional Weapons Bill [B7-2007]: public hearings

Meeting report

DEFENCE PORTFOLIO COMMITTEE
07 August 2007
PROHIBITION OR RESTRICTION ON THE USE OF CERTAIN CONVENTIONAL WEAPONS BILL: PUBLIC HEARINGS

Chairperson: Ms T Tobias (ANC)

Documents handed out:
AMD Presentation
Convention on Prohibition or Restriction on the Use of Certain Conventional Weapons as amended 21 December 2001
Protocol on Explosive Remnants of War

Audio recording of meeting [Part 1] & [Part 2]

SUMMARY
The Committee held public hearings on the Prohibition or Restriction on the Use of Certain Conventional Weapons Bill. This Bill had been drafted to support South Africa's obligations to put legislation in place to prevent violation of the Protocols forming part of the Convention on Prohibition or Restriction on the Use of Certain Conventional Weapons, to which South Africa was a signatory.  South Africa was to report on progress made at a conference in November 2007.

Various stakeholders made submissions during the public hearings on the Bill. The International Committee of the Red Cross suggested amendment of certain terms, and recommended further that the Bill should include wider powers of search and seizure.  Questions by Members addressed whether the provisions of this Bill would unduly limit the capacity of South Africa to defend itself, the possibility of greater powers of search and seizure, the compliance mechanisms, whether non-ratifying countries would still be able to use the weapons, what Red Cross was doing to ensure that these weapons were not used in conflict.

The South African Aerospace, Maritime, and Defence Industries agreed with the intention of the Bill but suggested some changes to the definitions listed in the Bill. It felt that it was also essential that clauses or terms be added to protect firms that were engaged in the removal of these weapons from conflict zones, and that research in tactics to counteract these devices was allowed to continue. Members agreed that it was important to clearly define terms in the Bill, and agreed also that research and development should not be limited to South Africa's detriment, and its military capability should be preserved. It was suggested that the Minister should be permitted to issue dispensations for training and for de-mining.

The Ceasefire Campaign supported the Bill and noted that defence should not require the use of indiscriminate weapons, but should rely on effective strategy and not on tit-for-tat tactics. It recommended that the Bill should address explosive remnants of war and cluster bombs, integrating certain aspects into the existing National Conventional Arms Control Act, and suggested some technical amendments. Members again queried if the lack of prohibition in the Bill against development or transfer of technology was problematic, the significance of the reservations by countries to the Bill, and the wording in relation to forests.

MINUTES
International Committee of the Red Cross (ICRC) Submission
Mr Jamie Williamson, Regional Legal Advisor, International Committee of the Red Cross,  commented on the legislation, which ICRC believed should be adopted with a few revisions. These revisions included amending the terms "blinding laser weapon", "explosive ordinance", and "unexploded ordinance". The ICRC also recommended amending the Bill to include broader powers for police and investigators to search for and seize prohibited weapons. Mr Williamson stressed that certain weapons should be prohibited because they violated the principle of distinction and were used in a manner that did not discriminate between combatants and civilians. Additionally, these weapons violated the principle of sufficiency because they caused injury in excess of what was needed to defeat an enemy. There was no loss of military advantage by agreeing not to use these weapons. Even if such loss was a possibility, the use of these arms still violated international humanitarian law. The Convention on Certain Conventional Weapons was a vital instrument to give weight to international law.

Discussion
Mr O Monareng (ANC) stated that he was pleased that South Africa was working on this legislation and that it was on track with these issues. However, in practical terms there might be situations in which these weapons might be useful. For example, civilians could use lasers to temporarily blind a criminal. In regard to the term "blinding laser weapon" he stated that the term laser was already contained in the Bill.

Mr Williamson answered that the terms "blinding" and "laser" should be put together to make the Bill more specific about the types of weapons that it sought to prohibit.

Mr Monareng asked if the Bill would limit the capacity for South Africa to defend itself. He stated that in regard to the enforcement powers set out in the Bill, the government already possessed these powers. although it was sometimes difficult to assign them powers to specific agencies. He stated that the Convention did not mention an oversight body for enforcement, as had the Convention on chemical weapons. It was up to the Committee to decide who would enforce the Bill. Furthermore, the Bill as currently worded seemed to put the responsibility for forfeiting the weapons on the possessor of those weapons. It would be preferable if police had the authority to search for and seize these weapons on their own initiative.

Mr Saviwe Njikela, Legal Advisor, Department of Defence (DOD), stated that the Minister of Defence would have the responsibility to enforce the Bill, but it might be necessary to delegate some enforcement powers for practical reasons.

Dr G Koornhof (ANC) asked how effective the ICRC thought the compliance mechanism for the Convention would be in terms of enforcement and collaboration. He stated that a number of countries had given reservations or declarations about the Convention, and wondered whether it would be enforced. He also asked how new legislation would be incorporated into the Convention, and whether ICRC recommended adopting Protocol V into the Bill.

Mr Williamson stated that thirty states had already signed Protocol V, regarding the explosive remnants of war. There were millions of unexploded land mines around the world, and these were mostly killing civilians. The Protocol would put the obligation on warring States to clean up all explosives at the cessation of conflict so that societies could return to normal. He urged the Committee to amend the Bill to include Protocol V, or to make reference to it for future adoption.

Mr M Moatshe (ANC) stated that currently there was a world of conflict and whilst it was very important to protect civilians, the Committee must be careful in restricting weapons. He asked if the United States had ratified the Convention and stated that if not, then the USA or another major power could use these weapons in countries that had signed, leaving those latter countries vulnerable to having to use less sophisticated weapons.

Mr Williamson noted that the United States and all other members of the UN Security Council had ratified the Convention. There had been a huge increase in civilian war casualties and the Convention addressed that issue. The ICRC was involved in conflict zones to ensure these rules were respected. The ICRC would be meeting with belligerents to raise these issues with them, so that these restrictions as set out in the Convention and the Bill developed into internationally respected norms Additionally, even if another party used these weapons, that did not in principle justify their use in South Africa, as this would be a violation of international law.

Ms P Daniels (ANC) stated that it was important to prevent civilians from the after-effects of war and asked what the ICRC was doing to ensure that these weapons were not used in conflict.

Mr Williamson stated that there was a multitude of reasons for military conflict, but that international humanitarian law was not concerned with the reasons for war, but rather trying to regulate the effects of it. By convincing belligerents to not use these weapons, the international community was increasing the chance of peaceful cooperation after the conflict.

The Chairperson asked how the rules of engagement were defined and how peace keepers were protected from these weapons in, for example, Darfur. She asked if Mr Williamson had any specific recommendation to define responsibilities when delegating enforcement authority. She also asked what was the impact of the declarations that had been made in terms of the Convention in other countries.

Mr Williamson stated that the unfortunate reality was that there was always disagreement between nations on these issues. However, the majority of states must work together to make the Convention fully effective. Additionally, if a country ratified then violated the treaty it could be prosecuted at the International Criminal Court or referred to the UN Security Council. In fact, even if a State was not a signatory to the Convention these actions could still be taken because these weapons generally violated international humanitarian law.

South African Aerospace, Maritime and Defence Industries (AMD) Submission
Mr Simphiwe Hamilton, Executive Director, South African Aerospace, Maritime, and Defence Industries, presented the defence industries' perspective on the Bill. AMD agreed with the intention of the Bill but suggested some changes to the definitions listed in the Bill. These included changes to the terms "object" and "objective", "discovery", "transfer", "person", "component part", "stockpiling", and "blinding laser weapons". It felt that it was also essential that language be added to protect firms that were engaged in the removal of these weapons from conflict zones, and that research in tactics to counteract these devices was allowed to continue.

Discussion
Mr Monareng stated that the Committee must be clear in its approach to the issue of definitions contained in the Bill. For example, a component might make up only 1% of a weapon, so it was important to be very precise in what the Bill sought to regulate. The Committee needed to be careful that it did not limit military capability.

Mr Hamilton stated that it was important to clarify the definitions of "object"and "objective" in the Bill so that the definitions of the Convention did not negate one another. In regard to research on development, he stated that the industry would like to do research to take counter measure against mines, for example when designing vehicles. This would help the military protect itself.

Dr Koornhof stated that AMD had made a strong case for not limiting research and development capabilities, and it was important for Parliament to ensure the Bill was implemented fairly. He asked what South Africa was supposed to do if other countries used these weapons against it because it could not legislate the Convention for other nations.

Mr Hamilton answered that without the ability to do research South Africa could not protect itself, because it would not develop the necessary capabilities. He also felt that it was the duty of Parliament to ensure reciprocity from other countries so that South Africa would not be unprotected.

Mr S Ntuli (ANC) stated that during the collapse of the Soviet Union many scientists were recruited away to other countries. He wanted to know what implications the Bill would have on the training of scientists for South Africa’s defence industry.

Mr Njikela noted that the Minister of Defence could issue dispensations for training, as well as determining activities in respect of anti-personnel land mines in the relevant legislation, and he suggested that similar wording in respect of training dispensations could be incorporated in this Bill as well.

Mr L Diale (ANC) stated that it was important to preserve South Africa's military capabilities.

Mr J Schippers (ANC) noted that Clause 10 made the mere possession of these weapons illegal and asked what could be done to inform the public and the defence industry so they were not open to prosecution.

Mr Njikela stated that there would be a period of six months to hand over prohibited weapons, but the issue of de-mining operations must still be dealt with.

The Chairperson stated that it was important not to criminalise the defence industry, but noted that if the Bill was passed but not enforced this would not be proper compliance.

Mr Hamilton agreed that it was important to ensure that the Bill did not have a detrimental effect on the defence industry, either through limiting research or by prohibiting de-mining activities which were humanitarian activities permitted by international law.

The Chairperson noted that the wording of the Bill, which stated that any person "found in possession of" these weapons, was liable to prosecution, was likely to create problems.

Mr Monareng stated that a defence force had the right to mine the areas surrounding its military bases and asked if the Bill would apply to this. He suggested that perhaps the legal advisors should take up this matter with the drafters, and try to ensure that permission was obtained for this particular type of protection.

Ceasefire Campaign (CC) Submission
Mr Rob Thomson, Member of Executive, Ceasefire Campaign, noted that CC supported the Bill strongly in an effort to work towards a demilitarized society. He noted that defence against indiscriminate weapons did not require the use of indiscriminate weapons, and that military success came from effective strategy and not from tit-for-tat tactics. The recommendations for the Bill included addressing the issue of explosive remnants of war and cluster bombs, integrating certain aspects into the existing National Conventional Arms Control Act, and some wording changes to make phrases more grammatically correct. The Convention could be used a lever during joint military operations to influence non-signatories of the Convention to adopt the measures contained in it. It was important to adopt this legislation because it would create an international norm against these weapons, so they would not be used against South Africans.

Discussion
Mr Ntuli asked if CC believed that the failure of the Bill to prohibit development or transfer of technology was problematic. He also stated that if South Africa did not participate in peacekeeping activities with non-signatories of the Convention, it was running the risk of being too prescriptive about the affairs of other nations. Every country had the right to its own sovereignty.

Mr Thomson stated that the weapons themselves were not the issue. It was the technology which was easy to move and harder to monitor. Therefore, it was important to stop the intellectual property from being transferred. In regard to other nations, the Convention could be used as a lever to assist in getting other countries to give up these weapons. It would open discussion between different militaries to create some norms and standards against the use of these weapons.

Mr Koornhof asked whether CC, with its international experience, regarded the significance of reservations attached by many countries to the Convention.

Mr Thomson answered that reservations generally came from dominant countries trying to maintain their dominance and their military industrial complexes. He suggested that the Department of Foreign Affairs look into specific reasons why countries had attached reservations.
The Chairperson stated that the National Conventional Arms Control Act could be strengthened to deal with some of the enforcement issues, but that the Department of Defence was ultimately responsible for enforcement of the Bill. In regard to the wording of the incendiary weapons section of the Bill, she indicated that this was aimed at covering non-state actors such as rebel groups or terrorists.

Mr Thomson asked, under the incendiary weapons section of the bill, why forests were included, and wondered if forests should be considered military targets in themselves.

Ms Ntombi Mnyikiso, Senior State Law Advisor, stated that she was satisfied with the way in which Clause 7 of the Bill was worded.

Mr Njikela stated that the intent of the Convention was to regulate militaries, but non-state actors could also be in possession of these weapons. However, it was noted that it was already illegal for any private citizen in South Africa to be in possession of these weapons.

The meeting was adjourned.