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DEFENCE PORTFOLIO COMMITTEE
31 July 2007
PROHIBITION OR RESTRICTION OF CERTAIN CONVENTIONAL WEAPONS BILL: HEARINGS
Chairperson: Ms T Tobias (ANC)
Documents handed out:
Prohibition or Restriction of Certain Conventional Weapons Bill [B7-2007]
The Ceasefire Campaign submission
Institute for Security Studies submission
International Committee of the Red Cross submission
Parliamentary Research Unit summary of submissions
Southern African Catholic Bishops Conference submission
AMD / South African Defence Related Industry (SADRI) Consolidated Industry submission
Convention on Prohibition or Restriction on the Use of Certain Conventional Weapons
Audio recording of meeting
As a signatory to the Convention on Prohibition or Restriction on the Use of Certain Conventional Weapons, South Africa was obligated to put legislation in place to prevent violations of the Protocols forming part of the Convention. It would have to report on progress made at the conference scheduled for November 2007. The Portfolio Committee had invited interested parties and defence industry stakeholders to comment on the proposed Bill and to make recommendations during June/July 2007.
At this meeting, the Parliamentary Research Unit presented a summary of the public submissions and their recommendations. The issues raised included making provision for future protocols that may be ratified, amending the wording of some of the definitions, the application of the Act when operating in other territories, matters related to mines, booby-traps, incendiary weapons and blinding laser weapons, offences and penalties, the surrender of prohibited weapons and forfeiture to the State, the regulations included in the Bill, the provision for an inspectorate independent of the Ministry of Defence and matters related to joint or combined operations. Although Protocol V was not yet ratified, it was expected that it would be and the inclusion of its provisions in the Bill was debated. The effect of the Bill on the development of new technology was discussed.
Members of the Committee were particularly concerned that South Africa’s ability to defend itself was not compromised. Concerns were raised about the restrictions on the development of new technology. Questions were asked about various definitions, military operations in countries that did not sign the Convention and clarity on the objectives and intentions of the proposed Bill. Further details of the implication of the Bill on other Acts and on Government policy issues were requested. Members asked for a list of signatory countries as well as a copy of the Convention itself. It was proposed that stakeholders be invited to make representations to the Committee before further deliberations take place.
Ms Tobias informed the Committee that six submissions had been received from various interested parties and stakeholders that included proposed amendments to the Bill. The purpose of this meeting was to consider the various issues and proposals raised by the stakeholders.
Ms Maggie van Niekerk (Researcher) explained that the Convention on Prohibition or Restriction on the Use of Certain Conventional Weapons (“the Convention”) originally made no provision for State Parties to implement national legislation to enforce the provisions of the Convention. However, in November 2006, article 2 of paragraph 2 was amended and State Parties were required to adopt enabling legislation. The Minister of Defence, through the Minister of Foreign Affairs, was required to report every year on what was done to carry out the terms of the Convention.
Ms Van Niekerk briefed the Committee on the summary of the submissions received from stakeholders and interested parties (see attached document). A major concern was the impact of the Bill on the South African National Defence Force (SANDF). She pointed out that South Africa was a signatory to the Convention and the Bill therefore did not place any new restrictions on the country.
South Africa had already ratified the first four Protocols and was in the process of ratifying Protocol V which dealt with Explosive Remnants of War. More Protocols could be expected in future and it was suggested that provision was made in the Preamble for this eventuality to avoid the need to amend the Act every time a new Protocol was ratified.
Changes to the wording of the definitions of “anti-personnel mines”, “blinding laser weapon”, “component part”, “conventional weapons”, “export”, “laser systems”, “military objective”, “person”, “procure”, and “transfer” were proposed. It was still a matter of debate whether the provisions of Protocol V were to be included in the Bill even though it had not yet been ratified. If they were to be included, the definitions of “explosive ordnance” and “unexploded ordnance” must remain.
Ms Van Niekerk considered the issue of extraterritorial application of the Act to be the biggest challenge, particularly where South Africa was involved in military operations in countries who were not signatories to the Convention.
It was necessary to clarify the definitions relating to mines, booby-traps and other devices and to omit the word “clearly” in relation to religious objects to avoid a potential loophole in the legislation. The provisions relating to the control of stockpiling, manufacture, transfer, etc of incendiary weapons needed to be clarified.
Blinding laser weapons were prohibited in the Bill but were classified as controlled items in the Munitions List (clause ML19f) of the National Conventional Arms Control Act (NCAC). It was necessary to decide whether such weapons were to be prohibited, controlled or restricted. A further contradiction with the NCAC was the maximum term of imprisonment.
There was a risk that a person could unknowingly be in possession of prohibited weapons or component parts and it was recommended that mechanisms be put in place to inform the public. It was also recommended that provision be made for search and seizure powers to be granted to police officials. It was necessary to include provisions relating to the disposal of weapons forfeited to the state as well.
At this point, Ms Tobias interrupted to ask if the term “any reasonable time” was clearly defined in relation to this recommendation and Ms Van Niekerk replied that it was not defined.
It was suggested that the Regulations allow for the addition of further protocols as well as any new undesirable weapons that may be developed in future.
It was recommended that provision be made for an inspectorate independent of the Ministry of Defence and it was suggested that the National Conventional Arms Control Committee (NCACC) play this role.
The issue of joint or combined operations needed further clarification. Recommendations were made to incorporate the provisions of Protocol V in the Bill, prior to the formal ratification thereof. A final concern was the possibility of undesirable restrictions being placed on the development of new weapons technology.
Mr R Shah (DA) said it was a challenge to address the issue of extraterritorial application of the Act and whether South Africa should even participate in military actions with countries that do not support the Convention. He suggested that if non-signatory nations were not using restricted weapons, then South Africa could then cooperate.
Dr G Koornhof (ANC) asked whether any submissions were received on the provisions of Protocol V and, if not, whether the Committee would consider asking stakeholders for comment on this protocol. He wanted to know how many parties had signed the Convention.
Ms Tobias asked Ms Van Niekerk to distinguish between which issues were raised in the public submissions and which matters resulted from her own research or were her own views.
Dr S Pheko (PAC) commented that it would appear that the Convention was not clear on a number of points, such as the definitions. He asked whether “reasonable time” would be defined in the Bill.
In response to Dr Koornhof’s question, Ms Van Niekerk replied that 108 State Parties had ratified the Convention. In response to Dr Pheko’s question, she said that it was South Africa's responsibility to ensure that the Bill was clear and that it was not the responsibility of the Convention.
Ms Tobias suggested that a definition of “reasonable time” be looked into. She mentioned that the at least four other Acts were affected and asked that the implications of the Bill on other legislation be investigated.
Mr O Monareng (ANC) requested that the objectives and intention of the Bill were clarified. He referred to the definition of “certain conventional weapons” and expressed concern that the restrictions on the development of new technology would threaten the overall security of the country. He remarked that the country’s ability to defend itself could not be compromised. Although there were certain weapons the country could do without, care must be taken that the defence capacity was not compromised. He proposed that a public hearing be held where the Committee was given an opportunity to raise issues for discussion.
Mr R Shah agreed that it was important that the overriding security of the country was not threatened by the Bill. He remarked that certain component parts may have a dual purpose and it may not be desirable that such a component part was prohibited or restricted.
Dr Koornhof asked if a list of the 108 countries that signed the Convention could be provided to the Committee. Ms Van Niekerk replied that this had been provided some time ago and agreed to make the list available again.
Ms Van Niekerk mentioned that certain countries had ratified the Convention but had added clauses to it.
Ms Tobias remarked that the clauses were added to circumvent some of the provisions of the Convention. South Africa may wish to consider the addition of clauses as well.
Mr Monareng said that although South Africa ratified the Convention, its own legislation must suit its own circumstances.
Ms Tobias noted that the legislation being contemplated must not be contrary to the signed Convention. She asked for clarification on the ratifying of Protocols.
Ms Ntombi Mayekiso (State Law Adviser) explained that there were direct and indirect ways of incorporating the provisions of the Convention and that it included processes that needed to be followed. She warned against deviating from the processes.
Ms Tobias asked for copies of the Convention to be distributed to the Committee to ensure that they operate in conjunction with it.
Mr Nthuthuzelo Vanara (Parliamentary Legal Adviser) explained that Section 231 of the Constitution gave clear guidance on the matter of ratifying international conventions. They had to be signed by the Executive and approved by Parliament. In the case of Protocol V, it had not yet been signed by the Executive and he cautioned the Committee against the pre-emptive use in legislation.
Ms Tobias said that the Committee needed to look at Protocol V and consider inputs on it.
Dr Pheko wanted to know if nuclear technology was included in the development of new technology.
Mr S Ntuli (ANC) also requested a copy of the Convention and wanted to know which countries had signed it and which countries had passed the required legislation.
Ms Tobias replied to Dr Pheko’s question and said that the development of new technology included nuclear technology. She reminded the Committee of the Government’s policy on the non-proliferation of nuclear weapons and that the policy must be taken into consideration as well. She remarked that the Bill affected other issues and policy matters as well, for example the conflict of issue between Government’s support for Korea and its policy on non-proliferation of nuclear weapons. She asked Mr Vanara and Ms Mayekiso to comment on the situation where the country’s stability was threatened as a result of its ratification of a protocol.
In response to Mr Ntuli’s question, Ms Van Niekerk explained that the Convention and Protocols included articles stating that signatory countries must have legislation in place to prevent violations of the Protocols. Provision was made for a conference to be held on an annual basis at which countries were required to provide feedback on progress made with regard to implementing such legislation.
Ms Tobias remarked that the Convention started in 1980 and asked which countries adhered to the obligatory part at which point.
Ms Van Niekerk explained that Protocol II was only amended in 2006 to provide for regulation. It was a new requirement and none of the countries had legislation in place as yet. They were required to report at the next conference to be held in November 2007.
Mr Monareng said that the Committee was able to meet this target if it had adequate information to hand. He proposed that public hearings were held to engage with stakeholders and to obtain their views to add value to discussions.
Mr Ntuli again requested a copy of the Convention and a list of the signatories thereto. He said that there were other actions that had to be taken when ratifying a convention – not just pass legislation.
Ms Tobias replied that the list of signatories, a copy of the Convention and Protocols, a document detailing the issues affecting Government policy as well as the effects of the Bill on other Acts would be provided to the Members.
Mr Vanara felt that the Chairperson had adequately answered the questions raised. Ms Mayekiso had no further comment to make.
Ms Tobias concluded the meeting by requesting that the Members of the Committee read the Bill in conjunction with the Convention and note their areas of concern. She proposed that stakeholders be invited to present their submissions to the Committee, whereafter the Committee could start its own discussions on the Bill. She reminded the Committee of the requirement for the Minister to report back at the conference in November 2007.
The meeting was adjourned.
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