Amendments to the Convention on Prohibitions or Restrictions on the use of Certain Conventional Weapons

NCOP Security and Justice

02 March 2010
Chairperson: Mr T Mofokeng (ANC; Free State)
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Meeting Summary

The joint meeting of the Select Committee on Security and Constitutional Development and the Portfolio Committee on International Relations and Cooperation was briefed by Ambassador Gambi from the Department of International Relations and Cooperation on the amendment to Article 1 and the new provisions in Protocol 5 of the Convention on Prohibitions or Restrictions on the use of Certain Conventional Weapons which may be deemed to be excessively injurious or to have indiscriminate effects (CCW).  Although South Africa was a signatory to the original CCW, the amended Convention had not yet been formally approved and accepted by the country.

 

The Members expressed concern that the approval of Cabinet to submit the acceptance of the amendments to the CCW was given in July 2007 but the matter was only referred to the respective Parliamentary Committees in March 2009.  The absence of a member of the Executive at the proceedings was deplored.  The Members felt that the Department had not adequately explained the exact nature of the amendments to the Convention and the implications and consequences of approval and acceptance.  Members were concerned over the implications of acceptance of the CCW on the South African defence industry, the SADEC region and the African Union. The Department was requested to arrange a follow-up meeting with the Committees, when a detailed briefing on the matter was expected.



Meeting report

The meeting was chaired jointly by Mr T Nxesi, (ANC, Chairperson of the Portfolio Committee on International Relations and Mr T Mofokeng (ANC; Freestate), Chairperson of the Select Committee on Security and Constitutional Development.

 

Mr Nxesi opened the meeting and noted that many Members were unable to attend due to Parliamentary oversight duties. The Members present did not constitute a quorum but the meeting would still serve its function as an opportunity for the Department to share information and for the joint meeting to start a discussion on how to proceed with the issues raised.

A member expressed his discontent with the fact that he only received the documentation shortly before the meeting started. He was unhappy with the fact that he had no time to peruse the documentation and to prepare for a constructive contribution to the discussion that was expected to follow.

Mr Nxesi acknowledged the Member`s concern.

Briefing by the Department of International Relations and Cooperation on Amendments to the Convention on Prohibitions or Restrictions on the use of Certain Conventional Weapons which may be deemed to be excessively injurious or to have indiscriminate effects (CCW)

The delegation from the Department of International Relations and Cooperation (DIRCO) included Mr Leslie Gumbi, Ambassador, Mr Rob Wensley, Deputy Director and Mr Ernst Kgopa, Parliamentary Officer.

Mr Gumbi presented the briefing to the Committees (see attached document).  The CCW was
the only legally binding international arms control agreement that addressed a range of diverse conventional weapons, such as mines, booby traps, laser blinding weapons and incendiary weapons and specifically addressed weapons deemed to be excessively injurious or to have indiscriminate effect. These included the explosive remnants of war, like landmines, which have a debilitating effect on post-war reconstruction and socio-economic development in affected areas. For this reason the CCW enjoyed wide acclaim as an important instrument of international humanitarian law.  The amendments to the CCW seeked to enforce the non-proliferation and in certain cases total ban of certain weapons like landmines as well as regulate the transfer of other weapons like laser-blinding and incendiary weapons, in line with the non-proliferation, disarmament and arms control measures which the international community adopted towards the end of the Cold War.

 

The briefing covered the significance and evolution of the CCW and South Africa’s involvement and participation in the Convention.  The purpose of the briefing was to obtain the Committees’ recommendation that South Africa accepted and approved the amendment to Article I and consented to be bound by Protocol V in order to pave the way towards ratification as envisaged in Section 231(2) of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996).  The recommended action had no financial implications other than the servicing of the meeting to be held in Geneva, Switzerland.  South Africa’s assessed costs for conference services and documentation amounted to approximately US$ 1,000 per annum.  The costs were covered by DIRCO.


Discussion
Dr G Koornhof (ANC; Member of the Portfolio Committee on International Relations and Cooperation) thanked the Department for a concise presentation. He understood that the Department was requesting approval for two amendments to the Convention, i.e. Article 1 and Protocol 5 and not the ratification of the CCW as South Africa was already a signatory. He understood that the amendment to Article 1 was to include conflicts of a non-international nature and the amendment to Protocol 5 dealt with the Explosive Remnants of War (ERW). He would have liked the presentation to have spelt out exactly what the amendment would be to Article 1 as well as how the new Protocol 5 differed from the old. He said that the joint meeting had to decide how the matter needed to be proceeded with, for example if the joint committees would need to hold hearings or if a report needed to be compiled. Although the amendments appeared to be straightforward, the joint meeting should have been briefed.

Mr Gumbi explained that it had been assumed that the Members of the Committees had familiarised themselves with the details of the amendments, which were attached to the documentation submitted by the Department.  The lack of a formal briefing on the details was an oversight by the Department, for which he apologised.


Dr Koornhof noted that the defense industry, which was represented by Aerospace Maritime Defense (AMD), was also a role player and he was unsure if or how the Department would involve them. AMD had a large network of manufacturers and companies in the in weapons-related field, which would be affected by the amendments.

Mr Gumbi replied that the Department was aware of the defense industry and its crucial role but did not make a special mention as the stakeholders were part of civil society. The parties involved in the defense industry were fully aware of the CCW and the amendments as it affected them directly as producers and transferors of weaponry. The amendments to the CCW would have a direct bearing on operations when export permits were applied for.


Dr Koornhof said that the Members have studied the explanatory notes. Protocol 5 dealt with munitions management, amongst other things. South Africa had at least three large storage facilities for dated ammunition that could no longer be used but was still considered to be dangerous. The storage areas were situated at De Aar, Jankempdorp and another site in Limpopo Province. He wanted to know what the implications were for the Department of Defense concerning these stores if South Africa consented to Protocol 5. Protocol 5 placed an obligation on the subscriber to train all personnel who worked at munitions stores and with remnants of war. There was a cost associated with training. Although there was agreement that the amendments should be approved, it was necessary that the Members engaged with the Department and the Executive on the practical implications of subscribing to the amendments and implementing them.

Mr L Nzimande (ANC; KwaZulu-Natal) said that although he agreed with the aims and objectives of what the CCW wanted to achieve, he did not believe that the financial implication was only US$ 1,000. He wanted a full report on the benefits and financial implications and obligations of agreeing to the amendments. He said that South Africa was quick to ratify international agreements and conventions, but there were instances when the country failed to implement the conventions and could not submit reports on the progress made. In his opinion South Africa should not ratify agreements and conventions without first having a clear understanding of all the implications and obligations involved. He agreed with Dr Koornhof that a detailed presentation on the actual amendments would have been useful.

Mr Gumbi stressed that he was not requesting ratification but was urging the Committees to agree to the amendments because he felt that the issues dealt with in Article 1 (i.e. the scope of the convention) and in Protocol 5 (i.e. the ERW) far outweighed the financial burden it would place on the country. He agreed that South Africa should not be too quick to ratify conventions but that the country should prioritise and carefully select which conventions were subscribed to. He felt that the subject matter that the CCW dealt with was worthy of being considered a priority as it had the potential to dramatically impact in a positive way on the lives of people in post-conflict societies.

Mr Gumbi said that although there were a few treaties that were not reported on, South Africa was known internationally as a regular producer of reports on implementation. He said that the Department would report to the CCW that it was still seeking approval for the Amendment to Article 1 and consent to be bound by Protocol 5.  He suggested that the meeting approached the concerns about the implications of being bound by the CCW from the premise that South Africa was making a political statement. The CCW was an instrument that seeked to address an acute problem in the region. South Africa could, like other countries, express its agreement with the political aims, objectives and principles of the CCW in the broad sense. It could then decide on how it could practically apply aspects of the Protocol in accordance with its own constitution and legislation.  Outreach visits could be conducted within the region and countries could be advised on how to be more responsible in respect of the handling of weaponry. The defense industry had an even greater role to play than Government as the agency that produced and transferred weaponry. The defense industry would address the issues concerning them in the context of the NCCA.

Mr K Mubu (DA) asked how many countries had signed the CCW convention. He was curious about which countries were producing these types of weapons and why they still did it even though these weapons had been outlawed. He asked what kind of sanctions was meted out against countries that manufactured or used these weapons.

Mr Gumbi replied that sanctions were a sensitive issue in the contemporary international relations setting because one was dealing with sovereign states which had the right to become members or not. The current strategy was to persuade states to buy into the concept of the CCW and to become signatories to the Convention. Thereafter, the legal aspects of the Convention would be reviewed, followed by an assessment of whether or not the signatory states had complied. Punitive measures were then introduced if signatory states were found not to have complied. If punitive measures were introduced at an early stage, some potential signatory states could be scared off. The non-proliferation treaties had proved that the chances of success were improved when the political and moral buy-in of states were appealed to. He expected that punitive measures for non-compliance would be introduced to the Convention at a later phase.


Mr Gumbi explained that the CCW was a voluntary instrument, which was still in the process of unfolding because of the amendments. Some counties only subscribed to certain parts of conventions, either out of choice or because of realities applicable to the countries. For example, the United States of America (USA) chose not to be bound by the protocol on mines. The border between North and South Korea was mined by American-produced mines. For this reason, it was difficult to ascertain exact numbers of signatories.


Mr Nxesi reported that the Cabinet had approved the amendment for submission to Parliament on 24 July 2007. The letter written by the Minister to Parliament to confirm the approval of the Cabinet was dated 15 October 2009. The letter was received by Parliament on 18 November 2009. There appeared to be significant delays in the internal communication between the Executive in Pretoria and Parliament in Cape Town. The matter only received attention on the 3rd March 2010 in the joint meeting between the Portfolio Committee on International Relations and Cooperation and the Select Committee on Security and Constitutional Development. He asked how the Department explained the lengthy time delays. He observed that there had been similar delays in the past, which could be interpreted as a lack of seriousness on the part of the Department.

Mr Gumbi conceded that the time elapsed between correspondence caused embarrassment to the sender as well as the receiver and created the impression that the Department was not respecting the time of the people who were tasked with reading and digesting the documentation. The Department had no control over the late arrival of mail and the systems in place for the transfer of information and bringing it to the attention of officials was not as efficient as it should be and needed to be upgraded. He gave his personal commitment to take the matter up with the Department.  He was unable to comment on the time delays between communication from the Cabinet and Parliament.

Mr S Ngonyama (COPE) suggested that the African Union (AU) and SADEC were taken into consideration when making decisions of this nature. South Africa was bound by regional agreements within these two organisations and could not make unilateral decisions that might contradict any prior agreements.  The principal of regional integration needed to be taken into account. He requested clarity on South Africa’s current participation in the CCW and what the country’s obligations would be if the amendments were approved.

 

Mr Gumbi advised that both the AU and SADEC countries supported the protocol because many African countries were profoundly affected by landmines. In Egypt there were still landmines from the Second World War. Angola and Mozambique were still dealing with the problem of landmines planted during the recent wars in those countries. The AU had been at the forefront of campaigning on behalf of the African continent for other countries to provide assistance to deal with the ERW and to curb the proliferation and use of laser-blinding weapons, booby traps and landmines. The African Group was organised as a regional grouping and identified common positions to put forward to the international community. The African Group was responsible for ensuring that the positions were integrated into the activities of the CCW. The Group lobbied developed countries for technical assistance and other resources to deal with the challenges of clearing landmines and ERW and the platform was an ideal opportunity to engage the donor community for assistance.


Mr Nzimande asked whether the Department had a deadline for obtaining approval for the amendments. He wanted to know why the matter was only now presented to the Committees. He wanted to know if the amendments had to be formally accepted and how the processed required would fit into the Parliamentary program.

Mr Gumbi advised that the Department was not bound by a deadline. The Department had the political goodwill to act on a matter that seeked to stabilise the region, to normalise people’s lives and to bring prosperity back to war-torn countries and communities. It was necessary to confirm the commitment to be bound by Protocol 5 and to accept the Amendment to Article 1 in writing. The international community knew South Africa as well-meaning and responsible and that South Africa would eventually come on board.

A member asked whether the delay had anything to do with South Africa’s observer status in the CCW meetings. He wanted to know why South Africa was only an observer when the country was a signatory to the Convention.

Another Member asked whether South Africa was bound by Protocol 5 or not as the statement in slide 8 of the presentation read “obtain RSA acceptance/approval of the amendment to Article1 and by Protocol V” She asked if civil society would only be engaged on the implementation of the CCW in countries directly affected (such as Angola) because it was crucial to South Africa.


Mr Gumbi replied that Protocol 5 had been signed and was in force but with the exclusion of South Africa as the country had not yet indicated whether or not it wanted to be bound by it. As with any treaty, there was a benchmark number and once the signatories had reached the benchmark number, the treaty entered into force. That was the reason why South Africa only had observer status in the meetings of Protocol 5. Once South Africa gave the indication that the country would be bound by Protocol 5, the country became a signatory with full participation status. As an observer, South Africa had to fulfill certain duties in terms of assisting the Protocol to achieve its objectives. For that reason, the fee of US$ 1,000 p.a. had to be paid for conference fees and documentation. It was important that South Africa was present at the meetings, even as an observer, because the country was situated in a region awash with ERW. The country needed to remain informed on the thinking and trends and could therefore ensure that no decisions were made that were contrary to the interests or policies of South Africa, the SADEC states or the AU states.


Responding to the question concerning the involvement of civil society, Mr Gumbi said that the Department would compile a report that spelt out how Southern African civil society was involved in the promotion of the CCW. The Institute for Strategic Studies at the University of Pretoria had been active in the involvement of civil society in the activities of the CCW.

Mr Nxesi asked whether South Africa had signed the protocol and what the implications were for the country. Even though explanatory notes were provided to the Members, they still needed a thorough understanding of all the implications before agreeing to anything. He was concerned that the Parliamentary Committees were being used to rubberstamp decisions that had already been made. The meeting accepted the apologies submitted on behalf of the Executives who were unable to attend but felt that a further briefing needed to be held and that the representatives from the Department included and Executive.  An explanation of the delay in the process was required and the full implications of accepting and approving the amendment to Article 1 and the new content of Protocol 5 needed to be explained.


Rev K Meshoe (ACDP) suggested that the Departments of Justice and Defense were invited to attend the follow-up briefing session as their presence would save time and facilitate the making of informed decisions by the Committee.

Mr Gumbi agreed to Mr Nxesi and Rev Meshoe’s suggestions for a further briefing and the presence of a member of the Executive.  Although the Department had not achieved the recommendation of the Committees that the amendments to the CCW were accepted, the importance of South Africa’s approval and acceptance remained.


Mr Mofokeng agreed that the questions and concerns raised confirmed the need for another session with all the stakeholders present.


Mr Nxesi concluded the meeting by saying that the session had been very useful as the issues had been laid on the table. He said that when Members raised concerns, it did not mean that the session was not useful. He thanked the officials of the Department for the presentation and the Members for their participation in the discussion. He hoped that the follow-up session would be held in the near future.


The meeting was adjourned.

 

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