A summary of this committee meeting is not yet available.
DEFENCE PORTFOLIO COMMITTEE
22 October 2002
ANTI-PERSONNEL MINES PROHIBITION BILL: HEARINGS
Chairperson: Ms T Modise
Documents handed out:
Anti-Personnel Mines Prohibition Bill [B44-2002]
Submission by ECAAR (Appendix 1)
Submission by MASA (Appendix 2)
Submission by the Southern African Catholic Bishops' conference (Appendix 3)
Submission by the South African council of Churches (Appendix 4)
The committee was informed on comments and suggestions, on the bill, from ECAAR (Economists Allied for Arms Reduction), MASA (Mines Action Southern Africa) and from the Cease-fire Campaign. The Cease-fire Campaign representatives however, did not attend the public hearing.
ECAAR presented representatives of victims who had suffered through the unsafe work environment at Swartklip. Swartklip operated at Mitchell's Plain and was considered to be one of the world's leading suppliers of pyrotechnics and related products. The victims' stories were heart-rending. The horror which they had experienced hit home when Petra Daniels explained how she had lost both her hands. ECAAR's concerns focussed on the effect that explosives had on people's lives. By written submission they had stated that this legislation was long overdue.
MASA's representative drew the committee's attention to certain issues raised in the written submission. He said that the legislation was progressive and one way in which South Africa could continue to take the lead on the landmines issue.
The chair said that she thought that this was the best draft she has seen since the bill was proposed and that she hoped that the submissions would contribute towards it. She said that she was aware that there were some deficiencies, but that these would be tackled by the committee.
Mr. Francois Vry from the military academy addressed the committee and handed out forms for completion by members. These forms were questionnaires on alternative military futures, which would help the academy glean what the political point of view was on the subject and the future of the SADF.
MASA's submission by Mr Noel Stott
Mr. Stott stated that workshops were run to facilitate civil society's input into South Africa's enabling legislation with respect to the 1997 Convention on the Prohibition of the use, stockpiling, production and transfer of Anti-Personnel mines and on their destruction. He said the MASA submission (see attached) was based on the reports drawn from those workshops. A vast number of organisations were invited to attend the workshops but not all attended.
It was important to note that the ANC was the first and only liberation movement and now ruling party in the world to apologise publicly and express sincere regret for civilian deaths and injuries resulting from the use of anti-personnel landmines. South Africa no longer had the capability to produce anti-personnel landmines and that South Africa's stockpile was destroyed by October 1998. He felt that legislation should address these issues. Some of the more important issues raised at workshops were that of claymores and what the obligations were of other militaries who came through South Africa. Issues raised at these workshops, to a large extent, had been covered by the bill. He concluded by discussing "joint operations" and how they would impact on the anti-personnel mine issue.
Mr. Schmidt raised a technical point on the definition of "mine" although he agreed with the definition on the MASA submission. He said that there seemed to be no fixed standard re the definition.
Mr. Stott said that it was dangerous to define a "mine" by size or design, he said that he was more concerned with defining "mine" by its impact.
It was noted by Mr. Nick Sendaal of the Defence Secretariat that the definition given in the treaty reflected the effect the mine had and this was the definition which should be adhered to. He said that there had been a long debate on whether a design- or effect- based definition of "mine" should be given. It was noted that it was the "victim-triggering" of the device which was the most important aspect.
An MP asked for some clarity on the use of "preferred". He asked whether they could assume that MASA had a problem with the definition. He also asked what "s1(c)(i)"referred to. Mr. Stott said that the use of "preferred" by no means indicated that they had a problem with the definition and he also apologised for the lack of clarity referring to 'any other mine or device which performs in a manner consistent with Section 1(c)i. He said that this section could be found in the Ottawa Convention.
Another MP asked what MASA's viewpoint was concerning the "domestic inspector" whose qualification was not known. He enquired what was meant by "competent person". Mr. Stott said that the provision made for the domestic inspector allowed for the potential for domestic fact- finding missions and was something which should be welcomed. Mr. Stott said that the question regarding who was competent was an interesting one; he said that he was not sure that "competent" needed to be defined because of the humanitarian effect explosive devices had and anyone could define this aspect.
The question was also raised whether military police would be included in the notion of "police" in the bill. Mr. Stott said that in his reading of the bill, he assumed that this would be the understanding.
Mr. Gert Oosthuizen (ANC) said that adverts on TV concerning the cleaning up of landmines had more negative than positive effects. He said that adverts were detrimental to the tourist market of South Africa and sending out the wrong message about safety in South Africa.
Mr Gogotya (ANC) asked if having domestic inspectors meant that anybody could decide to inspect his home at anytime and if this could be done without a warrant.
Mr Sendaal (Defence Secretariat) pointed out that clause 17 of the bill lays out the terms under which a domestic inspector may make an inspection. An inspector can only do inspections if accompanied by a police official and the inspector must have a warrant. The stockpile issue was also quite an important one.
Mr. Sendaal then said that he wanted to explain the concept of a "claymore". He said a device can only be called such if there is a tripwire present. He said that an anti-handling device would be illegal if it could be detonated through the proximity of a person and with regard to "combined operations". He said that South Africa could not do anything which would be tantamount to contravening the bill/ convention.
Mr. Stott asked the SADF if they would be assessing their vehicles to look for anti-mine handling devices.
SADF said that they would implement this when the law came into effect.
ECAAR submission by Mr. Terry Crawford-Browne
Mr Crawford-Browne welcomed the bill, and did not raise any issues or problems with the bill. (Please see attached.) Ex Swartklip employees presented the Committee with their experiences.
Ms Anne Fisher
Mrs. Anne Fisher, the first of five speakers, told of how her family worked at Swartklip and how one of them transported hand grenades from Swartklip. Employees had to take an oath not to tell what happened at Swartklip and that she had waited 27 years to break that oath. Management did not take care of workers. She said because of the almost non-existence of safety regulations her husband had lost the sight in his one eye and has twenty per cent vision in the other. This was due to him rubbing his eyes with the combination of dust and gunpowder on his hands. There was no water on site for them to wash their hands and so no chance of ridding their hands of the gunpowder.
An MP asked what protection would these presenters have once they left the meeting.
The chair said that the parliamentary rules will protect them. She did not believe that anyone would dare to go after Mrs. Fisher. The chair said that the committee would have to pay a visit to Swartklip and that they would have to get back to Mrs. Fisher via Mr. Crawford-Browne.
Mr. Petersen gave his Swartklip story. He said that he had worked there for twenty years; as a driver. He had driven Mr PW Botha. He said that he also transported explosives. He said that he was in charge of transporting one of the four loads of TNT and that afterwards there would be a bitter taste on his lips. This taste lasted a long time and made eating very difficult. He said that he has had ten operations in the last nine years. He suffered from TB. There were days he got paid ten rands for 24 hours working. Now he only gets paid disability. He said that his mother was suffering with stomach cancer after her 35 years at Swartklip. He also said that even though there were current laws in place against transporting explosives at night, this was common practice at Swartklip.
Mr. Gogotya (ANC) said that as sad as these stories were, the meeting was being diverted of its purpose, which was to discuss the bill. The bill deals with landmines specifically and not the effects of explosives' manufacturing. He said that he therefore had a slight problem with the procedure.
The chair asked the committee for their opinion on the procedure. The general consensus was that the committee should listen to the stories because these people had taken the time to come to Parliament and that the committee had a duty to accommodate them.
The chair then pointed out that it was clear from Mr. Petersen's story that workers were not given protective clothing and that was a violation. She felt ashamed at having failed these people because how could the ordinary man take on Swartklip.
A request was made that the Swartklip workers must give written submissions too.
Ms Petra Daniels
Ms Petra Daniels said that a certain substance had exploded while she was working with it and as a result she lost both her hands. She said she would just like to ask that workers be provided with protective clothing in the future.
The chair said that the irony is that the committee had visited Swartklip before. Mr. Oosthuizen asked what assistance are these presenters getting from Swartklip now.
Mrs. Eksteen then presented on behalf of her husband, who attended but was too ill to speak. She said that her husband was given an instruction to clean something, but that the instruction was not in accordance with safety regulations. As a result her husband's back was severely burnt. She said that he received no compensation because he was injured while on duty. She said an initial investigation took place, which found that her husband wasn't responsible for the accident, but no further investigation took place. She said that he has also been suffering with TB for 3 years now, but the doctor has told him that he no longer needs to use tablets because he has lost his one lung and they are not sure how much of his other lung is left.
Ms Roda Moerees
Mrs Roda Moerees said that her job involved "mixing" substances and as a result of an explosion she was burnt and 75% of her body was covered with burns. When she went outdoors she had to wear gloves and a scarf to cover her head. She said that she only received R286 from Swartklip as compensation.
An MP stated that he foresaw problems of security when going to Swartklip. He said that the powers of Parliament should break through these potential problems before they visit the plant.
The chair wanted to go to the plant before 25 October 2002. Other departments like labour and the quality of the status of women should be invited along too.
Mr. Oosthuizen said a commission of enquiry should be set up because it seemed that these illegal practices were still taking place. There were time scales which needed to be taken into consideration. The chair said that it was the department's duty to expose the truth.
Mr Gogotya said that they had to strategise their visit to Swartklip because on the last visit everything was in order and not a single worker complained about the conditions they were working under.
The chair agreed. She was concerned about how explosives were manufactured throughout the country, not just at Swartklip and that other plants might be visited.
The chair said however, that South Africa still needed defence. Manufacturing explosives could not be stopped completely. This industry had an even bigger responsibility to its workers' safety than any other industry. She felt the bill had been complicated by the ECAAR submission, which focussed on the effect of explosives. She asked where the stockpiles were and how it was being stored.
Mr. Schmidt asked if TB was a natural consequence of working with explosives. There was no answer to the question, but the matter would be investigated.
Mr. Muruti expressed his gratitude to the ex Swartklip workers for the courage they displayed by sharing their stories with the committee. He said that this type of interaction was welcomed. In SA specifically there is a peace initiative which was marked by the discontinuation of the 21 gun salute.
Mr. Sendaal said that the stockpile was kept somewhere near the Rand Technikon and that a visit could be scheduled.
Mr. Stott said that the public's participation the point that the experience of the ordinary man on the street was important.
The meeting was adjourned.
Economists Allied for Arms Reduction
E C A A R -- SA
ECONOMISTS ALLIED FOR ARMS REDUCTION
Thank you for inviting ECAAR-SA to make written and oral submissions regarding the Anti-Personnel Mines Prohibition Bill. This legislation is extremely welcome, albeit somewhat overdue. South Africa was the third country to sign the Ottawa Convention in December 1997 having mobilised international leadership to outlaw the production and use of anti-personnel landmines.
One of Madam Speaker's first decisions after our transition to democracy in 1994 was to offer an apology to the people of Mozambique for apartheid South Africa's role in their misery. Her's was a courageous albeit controversial statement at the time. President Nelson Mandela went further and cancelled Mozambique's and Namibia's debts to South Africa.
South Africa's deliberate destabilization of neighbouring countries during the 1980s was estimated by the United Nations to have:
- caused the deaths of one and a half million people
- caused four million refugees
- resulted in economic destruction estimated at US$65 billion, and
- killed 100 000 elephants and rhinos whose tusks and horns were sold to compensate South Africa for weapons supplied to Renamo and Unita.
There are an estimated two million landmines in Mozambique, and between 12 and 15 million in Angola which is the country in the world most infested by landmines. The peasant farmer is unable to till her fields because of landmines, and a result is famine. Landmines have brought and continue to cause misery to people in Southern Africa and beyond.
It is also reported that there are very few game animals to be seen in Angola. They, too, are blown up by landmines. Legislation to prohibit anti-personnel mines should have been passed years ago, and enforced.
We are a country full of good intentions, but rather poor on follow-up. The principles and rationale of the National Conventional Arms Control Committee issued in 1995 were perhaps as good as found anywhere in the world. Yet the United Nations and other international organizations continue to complain about South African weapons being supplied to Angola, the Democratic Republic of Congo and elsewhere.
The Minister responsible says that the government can't be blamed for the behaviour of corrupt customs officials or policemen, who close their eyes when these supplies pass through South Africa's airports. The Firearms Control Act still hasn't been implemented, and in South Africa 35 people die each day because of gunshot wounds. Where is the political will to implement government policy and legislation?
What are the consequences of the armaments industry and landmines not only in Mozambique and Angola during the apartheid era, but for our own South African people both then and now?
Is South Africa still manufacturing and exporting landmines and their components? ECAAR-SA has been requested by a British organization to investigate such allegations. Of course, we may risk 20 to 25 years' imprisonment for divulging such information once the National Conventional Arms Control bill becomes law.
A report in Janes' Defence Weekly of 22 May 2002 notes that PW Defence is being investigated in England for manufacturing a device in contravention of the Landmines Act, the British legislation that gives effect to the Ottawa Convention on landmines. The product in question is the E105 fragmentation hand grenade, offered with an E190 tripwire activation device for perimeter defence. It is alleged that PW Defence has been actively marketing anti-personnel landmines in contravention of the Ottawa Convention.
PW Defence is the new name for Pains Wessex Defence. On October 12, 2000 the Minister of Public Enterprises announced that Pains Wessex Defence had taken an equity interest in Denel's Swartklip division. It is understood to be 15% or 20%.
This, presumably, is one of the offset DIPS resulting from the arms deal. Swartklip Products considers itself to be one of the world's leading suppliers of pyrotechnics and related products, and boasts of its marketing successes for record sales of pyrotechnic 155mm carrier rounds and industrial power cartridges. It exports to Africa, the Middle East, South America, the Far East and Europe.
The Minister's announcement on October 12, 2000 declares:
The cabinet has decided to invite Pains Wessex Defence to enter into discussions with them to take an equity share in Swartklip and to sell an equity share to a black empowerment group. The Denel Swartklip division's core business is in the manufacture of pyrotechnic products. Pains Wessex Defence is a British pyrotechnic manufacturer and part of the Chemring Group PLC. It also manufactures pyrotechnics and a wide range of countermeasure products, and is a global player. They sell their products in over 60 countries worldwide.
Pains Wessex Defence will add value to Swartklip for all shareholders through technology transfer, skill development, market access, increased workload in the factory, investment and sharing of R&D costs in developing new products. This will also increase Swartklip's competitiveness and sustainability.
First, who comprises the black empowerment group, and what is its political lineage? Is it coincidental that the announcement coincided with negotiations for the sale of AECI, the explosives manufacturer, to black empowerment groups via the Libyan Arab Foreign Investment Company, LIFICO?
More pertinently to these hearings, PW Defence denies the charges in Janes' Defence Weekly, and declares that the grenade was taken off its product list in 1997. An inquiry from British activists has however, led to confirmation that PW Defence has licenced Swartklip to manufacture these devices, and that Swartklip is now exporting them via Durban to countries including Italy and Malaysia. They are apparently also trucked to Johannesburg, from where they are presumably exported to countries such as Zimbabwe and the Democratic Republic of Congo.
We are still endeavouring to confirm:
- when the production agreement between PW Defence and Swartklip was signed,
- when the shipments to Italy, Malaysia and trucking to Johannesburg took place?
- whether the grenades include any PW markings?
- are the grenades being exported together or separately from the tripwires?
It is however, a recurring problem that the international armaments industry uses gaps in legislation and jurisdictions to continue to manufacture and export such items. As an illustration, a few years ago Amnesty International learned that South Africa was exporting torture equipment to China and Burma. An interview was granted with the chairman of the NCACC who vehemently denied the possibility, and insisted that South Africa only sold radios and radio components to China.
It transpired that the South African subsidiary of a British company was manufacturing the equipment, but fraudulent documentation as cattle prodders indicated that it was for shipment to England rather than China. The English parent company however, also denied shipping the equipment to China, and the documentation fell "between the cracks" of South African and British jurisdictions.
Apparently, shipping the E105 grenades separately from the E190 device is one of the "cracks" PW Defence uses to bypass British controls. We can expect similar tricks in South Africa to nullify the intentions of this legislation. Moreover, the NCACC will say, bureaucratically, that landmine exports are prohibited and therefore the problem does not exist or else is outside the NCACC's jurisdiction.
The inquiry whether Swartklip is manufacturing landmines or their components has led however, to even more alarming discoveries. Trade unionists declared "Swartklip employees don't live very long. Many have lost their hands, their legs, their eyesight, their hearing, their mental faculties, and many develop heart disease, arthritis and cancers. They are discharged with compensation of R1 000, and told to take responsibility for their own medical expenses,"
I asked how many people are affected like this, 20 or 30? The response was: "900, and there are more at Somchem." People at both Swartklip and Somchem are intimidated by Denel to remain silent. Macassar and Firgrove are severely traumatized communities, impoverished by an industry that the late Oliver Tambo described as "a frankenstein monster that cannot be reformed, and must be destroyed."
Swartklip operates at Mitchell's Plain, and Somchem at Macassar and Krantzkop (near Wellington). Somchem manufactures the propellants and explosives used by Swartklip and other Denel divisions.
In 1996 the affluent residents of Rooi Els and Pringle Bay, after a legal battle over ten years, finally succeeded in closing down Somchem's artillery test range in the mountains above their holiday homes. They feared that lead, mercury, antimony and beryllium contamination of the land would leach into the Buffels River, and thus poison their water supply.
Simultaneously, the United States applied pressure on South Africa for closure of the test range used to test slugs for the warheads of G5 and G6 artillery. This artillery, arguably the world's most advanced, was designed to deliver both tactical nuclear weapons and chemical and biological warfare agents. The United States also detailed what clean-up measures were necessary on the site.
The testing of these warheads is understood to have been transferred to the Alkantpan test range in the Northern Cape. Other reports suggest Somchem is also using False Bay and De Hoop Nature Reserve for testing, where southern right whales come close to the coastline to mate and calf during the winter months. However, the manufacture of the weapons continues at Denel's factories.
The Joint Investigating Team report into the arms deal makes it evident that Denel sees its future in the international armaments markets through piggy-backing on BAE Systems. Denel employs about 12 000 people, but remains heavily-subsidised by South African taxpayers. It was evident that BAE Systems would licence Denel to manufacture components in low-wage South Africa for export, but expensive research and development would be undertaken elsewhere. Subsequently BAE Systems has taken a 30% shareholding in Denel which, during its 2001/2002 financial year, returned yet another loss of R363 million. Some R4 billion in public funding is tied up in Denel, albeit that the financial statements are so heavily qualified that they are barely worth the paper they are written on.
One of the first defence offsets to be announced was that Somchem has been awarded a ten year Â£100 million contract to supply the modular charge system to upgrade British Army AS90 155mm artillery guns that are to come into service in 2003. About 100 employees at Somchem will work (and many will die) on this contract. What kind of jobs are being created?
Most alarming of all, is Denel's complete disregard for the health and welfare of South African citizens. What do the ingested chemicals do to its employees? This is a disgrace about which the government, as Denel's major shareholder through the Department of Public Enterprises, should be thoroughly ashamed.
We are gathering affidavits preparatory to legal action. The Bill of Rights of the South African Constitution declares under Section 24:
Everyone has the rightâ€”
- to an environment that is not harmful to their health or well-being; and
- to have the environment protected for the benefit of present and future generations through reasonable legislative and other measures thatâ€”
- prevent pollution and ecological degradation;
- promote conservation; and
- secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.
The manufacture and export of landmines and similar weapons completely violates that constitutional commitment. Next Tuesday, during the oral hearings I propose, with your permission, to relinguish my 20 minutes to representatives of the victims and their spouses. Sadly, many others are too ill to manage the 30 minute journey to Parliament to tell their stories.
[Please e-mail email@example.com for footnotes if required]
THE ANTI-PERSONNEL MINES PROHIBITION BILL
(As introduced in the National Assembly as a section 75 Bill; and as published in Government Gazette 23744 of 26 August 2002)
Submission to the Parliamentary Portfolio Committee on Defence
By Noel Stott
Mines Action Southern Africa (MASA):
A member of the 1997 Nobel Peace Prize Winner:
International Campaign to Ban Landmines (ICBL)
22 October 2002
Firstly let me thank the Chairperson, Ms Thandi Modise and all the members of the Portfolio Committee on Defence, for this opportunity to say a few words about how we see the Anti-Personnel Mines Prohibition Bill. Who do I mean by "we"? My name is Noel Stott and I am and have been a member of the Co-ordination Committee of the International Campaign to Ban Landmines (ICBL) since June 1997. In addition, I co-ordinate the national member organisation of the ICBL in South Africa - Mines Action Southern Africa (MASA) - which used to be known as the South African Campaign to Ban Landmines (SACBL).
To pay the Bills, I work for the Institute for Security Studies as a researcher examining issues of small arms and light weapons in the Southern African or SADC context and am presently involved in a study for the United Nations Institute for Disarmament Research (UNIDIR) of South Africa's policies and experiences of the destruction of small arms and light weapons with a view to developing "lessons-learnt" for other countries considering such programmes.
As you may know, in June 2001, Mines Action Southern Africa was requested by the Defence Secretariat and the South African government's MBT Enabling Legislation Drafting Committee to organise three workshops (in the Cape Town, Durban and Johannesburg areas) involving government and members of South African civil society. The purpose of the workshops was to facilitate civil society input into South Africa's enabling legislation with respect to the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction.
We viewed this opportunity as a way in which South Africa could continue to take the lead, not only with "progressive" legislation but also in continuing the tradition of civil society/government co-operation on the landmines issue as established by the Ottawa Process.
The Workshops were planned to take place during the last two weeks of October and the first week of November 2001 and to involve as many NGOs and CBOs from each region as possible. Each workshop took the form of inputs by the government committee drafting the legislation, the International Committee of the Red Cross (ICRC) and civil society. The Workshops were held under Chatham House rules.
It was envisaged that once all the Workshops had been held, a brief but comprehensive report (or minute) would be compiled from which a civil society submission could be drawn up and formally submitted to the drafting committee, the Department of Defence and/or the relevant Parliamentary Portfolio Committee.
The present document is this submission. I should also point out that an additional three workshops were held with the mine clearance community in South Africa and while I stand to be corrected most, if not, all their concerns are successfully dealt with in the current Bill or through other mechanisms deemed more appropriate.
South Africa was the third country to sign the Convention on 3 December 1997. It ratified on 26 June 1998, and the treaty entered into force on 1 March 1999. In May 2002, South Africa's Foreign Minister assured the ICBL that "As a State Party that is committed to the terms of the Treaty, South Africa remains active in the universalization of the MBT [Mine Ban Treaty]. In this context, South Africa participates in the discussions of the Universalization Contact Group and uses bilateral contacts to encourage the ratification of the MBT amongst African countries." At the Third Meeting of States Parties in September 2001, South Africa said it "firmly believes that the Convention has irreversibly established itself as the international norm in banning anti-personnel mines (APM)â€¦. we cannot de-mine today simply to re-mine tomorrow, and the only guarantee we have to prevent re-mining is to implement policies banning anti-personnel mines."
Importantly for us, the African National Congress (ANC) is the first and only liberation movement and now ruling party in government in the world to publicly apologise and express sincere regret for civilian deaths and injuries resulting from the use of anti-personnel landmines. In addition, through South Africa's Truth and Reconciliation Commission (TRC) a number of individuals on both sides of the conflict applied for amnesty from prosecution for their use of landmines against political activists and innocent civilians. Individuals who survived landmine incidents were able to tell their stories and express their feelings about what happened to them and their families and how they felt about the international ban on anti-personnel landmines.
South Africa plays a leading role in the intersessional work program and the various Standing Committees; South Africa has stated, "We are heartened by the fact that States Parties, other States, the ICBL, ICRC and many other non-governmental and international organisations have participated actively in the work of all the Committees."
South Africa has co-sponsored and voted in favour of all UNGA resolutions relating to the banning and clearance of landmines including UNGA Resolution 56/24M in November 2001, calling for the universalisation and implementation of the Convention.
South Africa has been a state party to the Convention on Conventional Weapons (CCW) since October 1995 and its Amended Protocol II since June 1998. The government participated in both the Annual Meeting of Amended Protocol II and the Second Review Conference of States Parties to the CCW in December 2001 in Geneva, and was elected as one of 10 Vice-Presidents of the Conference.
In its statement, South Africa observed that, 18 years after the Convention's entry into force there are only 88 State Parties and stressed that the promotion of wider accession should be a high priority for the Review Conference. It proposed that there should be regular meetings of the States Parties in order to foster closer co-operation and consultation among them and to encourage further accessions. South Africa asserted that the CCW and the Mine Ban Treaty were not mutually exclusive, since the former goes beyond the realm of one specific weapon. The international community's ultimate objective should be universal accession to the Mine Ban Treaty and to the CCW and its annexed Protocols.
South Africa supported the call for an extension of the scope of the CCW to non-international conflicts and the proposal that a group of experts should undertake work on explosive remnants of war (ERW) with a view to a future legally binding instrument on ERW. South Africa also submitted a Working Paper on "Additional Articles on Consultations and Compliance."
South Africa, along with Nigeria and Senegal, have developed a strategic framework to enhance poverty eradication in Africa and to place African countries, both individually and collectively, on a path of sustainable growth and development in the world economy. As a political framework, the New Partnership for Africa's Development (NEPAD) recognises that combating the illicit proliferation of small arms, light weapons and landmines is one of the important conditions for sustainable development.
South Africa is a past producer and exporter of anti-personnel mines. It no longer has an anti-personnel landmine production capability. Destruction of its stockpile of mines was completed by October 1998. South Africa retains a number of anti-personnel mines for the training of soldiers to deal with anti-personnel mine threats during peacekeeping operations, as well as for the development of effective demining equipment, demining research purposes and military/civilian education purposes as provided for under Article 3 of the Mine Ban Treaty. In 1997, the South African National Defense Force (SANDF) transferred 5,000 retained mines to Mechem. In its Article 7 reports, South Africa has reported that Mechem used 170 Rain 51103-05 anti-personnel mines for demonstration and training purposes in 1999, another 325 in 2000, and another 50 in 2001. Thus, as of 31 December 2001, 4,455 Rain 51103-05 mines remained in stock, under the control and authority of the Council for Scientific and Industrial Research's Defencetek.
South Africa provides a number of international humanitarian organisations with financial and material aid aimed mainly, but not exclusively, at SADC member States. South Africa has reported that in 2000 it donated R400,000 (US$40,000) to the ICRC for the rehabilitation of mine victims in the SADC region, and in 2001 donated another R350,000 (US$35,000). In fiscal year 2001-2002, the International Committee of the Red Cross (ICRC) received a donation of R200,000 (US$20,000) specifically for the rehabilitation of landmine survivors in Angola.
All of the above description of South Africa and landmines is intended to show that South Africa has been and continues to be a world leader on this issue. We should ensure that South Africa continues to take the lead with "progressive" national legislation.
The Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on their Destruction ('the Ottawa Convention') creates various obligations for those countries which are parties to it.
Article 1 of the Convention sets out the general obligations of the Convention as follows:
1. Each State Party undertakes never under any circumstances:
a) to use anti-personnel mines;
b) to develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, anti-personnel mines;
c) to assist, encourage or induce, anyone to engage in any activity prohibited to a State Party under this Convention.
2. Each State Party undertakes to destroy or ensure the destruction of all anti-personnel mines in accordance with the provisions of this Convention.
The few exceptions to the general obligations are set out in Article 3, which provides that a minimum number of landmines may be retained or transferred to develop or train in mine detection, mine clearance or mine destruction. This South Africa has done and we need to ensure that these are clearly controlled through this legislation. It also provides that anti-personnel mines may be transferred for the purpose of destruction.
Once a Convention is drafted, signed and ratified and any reservations or declarations made known, the next step is implementation at the national level. Article 9 of the Convention thus addresses national implementation measures and requires that '[e]ach State Party... take all appropriate legal, administrative and other measures, including the imposition of penal sanctions, to prevent and suppress any activity prohibited...under this Convention...'
A state cannot plead provisions of its own law, or an absence thereof, to answer a claim against it for an alleged breach of its obligations under international law. There is in general an obligation on parties to a treaty to bring their internal law into conformity with their international obligations.
The Ottawa Convention requires states parties to undertake many actions and cease to engage in others. As mentioned above, some of the more visible acts that have or will be facilitated by the Convention are the destruction of existing stocks of landmines (which South Africa has done), the cessation of production of landmines (which South Africa has already done) and the destruction of deployed stocks (which South Africa does not have).
However, there are other issues such as the provision of criminal sanctions for individuals caught engaging in prohibited acts that are not so visible. The nature and extent of these sanctions is not provided in the Convention and must therefore be supplied by national law to give effect to treaty obligations. Thus, this is also needed in order to prevent citizens to engage in prohibited activity in another country. While those citizens are subject to the laws of the country in which the prohibited activity is being undertaken, the country of which they hold citizenship must also be able to criminalize the actions notwithstanding that they have been committed in another country.
The enacting of legislation would also assist other countries that find that one of their citizens is seeking refuge from criminal prosecution in that other country. A final consideration is that the enacting of legislation by all countries enhances the possibility that a ban on the use of landmines could become part of customary international law. In the meantime, as customary international law evolves, each piece of national legislation becomes one part of the movement to ban landmines. The role of the legislation internationally is one of moral suasion to other nations to also ratify and implement the Ottawa Treaty.
To facilitate the organisation of the workshops, it was decided to invite a prominent NGO in each region to co-host each Workshop. For strategic and practical reasons, the NGOs chosen were members of MASA (formerly, the South African Campaign to Ban Landmines). Those chosen were: The Group for Environmental Monitoring (GEM), Johannesburg; the Centre for Conflict Resolution (CCR), Cape Town; African Centre for the Constructive Resolution of Disputes (ACCORD), Durban.
As planned these Workshops took place:
- Johannesburg: 19 October 2001 at the office of MASA member, the Group for Environmental Monitoring (GEM).
- Cape Town: 26 October 2001 at the office of MASA member, the Centre for Conflict Resolution (CCR).
- Durban: 2 November 2001 at the office of MASA member, African Centre for the Constructive Resolution of Disputes (ACCORD).
African Renaissance Institute (ARI); African Demining Institute (ADI); Association for the Physically Disabled - Greater Johannesburg (APD); Black Sash - Gauteng; Campaign Against Neo-Liberalism in South Africa (CANSA); Ceasefire Campaign; Centre for International Political Studies (CIPS); Centre for Applied Legal Studies (CALS); Centre for Policy Studies (CPS); Congress of South African Trade Unions (COSATU); Co-operative for Research and Education (CORE); Diversity, Nature and Animals (DNA); Development Resource Centre (DRC); Earthlife Africa (ELA); Environmental Development Agency (EDA); Environmental Justice Networking Forum (EJNF); Group for Environmental Monitoring (GEM); Human Rights Committee of South Africa (HRC); Heinrich Boll Foundation; Institute for Democracy in South Africa (IDASA); International Committee of the Red Cross (ICRC); Institute for Security Studies (ISS); Justice and Peace Commission (SACBC - Johannesburg Diocese); Lawyers for Human Rights (LHR); Legal Resources Centre (LRC); Management & Conference Services Africa (MCS); National Council for Persons with Physical Disabilities in South Africa (NCPPDSA); National Institute for Public Interest Law and Research (NIPILAR); Oxfam; People for Awareness on Disability Issues (PADI); SaferAfrica; XWE; South African Institute for International Affairs (SAIIA); South African National NGO Coalition (SANGOCO); Southern African Catholic Bishops' Conference (SACBC); South African Red Cross; UNICEF; National Network on Violence Against Women; Dr. W. Rubanzana (Landmine Survivor); ECAAR-UK; CSAS; Globe; Department of Political Science, University of Natal (Durban and Pietermaritzburg); Department of Law, University of Natal (Durban and Pietermaritzburg); Department of Political Science, University of Durban Westville (UDW); Department of Law, University of Durban Westville (UDW); Human Sciences Research Council (HSRC); Agenda; Association for Rural Advancement (AFRA); Association for Persons With Physical Disabilities (APD-KZN); Church Land Project (CLP); Environmental Justice Networking Forum (EJNF); Diakonia Council of Churches; Organisation of Civic Rights (OCR); Pietermaritzburg Agency for Christian Social Awareness (PACSA); Centre for Socio-Legal Studies (CSLS); Critical Resource; African Centre for the Constructive Resolution of Disputes (ACCORD).
To be fair, it would be important to point out that not all invited organisations were able to attend and we may have missed some that should have been invited. Nevertheless, I think that those who were able to come were those who felt they had something to contribute to strengthening the Bill and this is in fact what happened.
In preparing for the Workshops, Mines Action Southern Africa (MASA) took the view that our legislation should at minimum fulfil all the requirements of the Convention - but should go much further - not in terms of tackling other munitions as such but rather in clarifying some of the terms and concepts that could be misunderstood in the Convention itself.
During the Workshops, we interrogated the policy pronouncements made by the drafting Committee with a number of questions and indicated that in our view an affirmative answer or clarity was needed for civil society to support any draft Bill that was developed. These questions included the following and are in no particular order and some are overlapping in content.
- Is it extra-territorial? In other words, is it binding on South African citizens abroad?
- Does it also cover the banning of anti-personnel landmine components?
- Are there heavy penalties for violating the Treaty and/or legislation?
- Does it bind companies as well as individuals to the ban?
- Does it prohibit combined operations with non-State Parties using APMs?
- Does it prevent and punish any prohibited activity by persons on territory under its jurisdiction or control?
- Does it make provision for the necessary changes in military doctrine, codes of conduct, training procedures and manuals to be made.
- Does it include giving notification to companies involved in the production or transfer of landmines and the review by relevant ministries of import and export licenses in light of the Convention's requirements?
- Does it allow for appropriate administrative measures to authorise the collection of information for the compliance of Article 7, which requires each state party to file an annual report with the Secretary-General of the United Nations?
- Article 8 provides for the facilitation and clarification of compliance. In complying with this Article, South Africa will need to provide a process for receiving and responding to requests, as well as the appropriate measures for hosting and co-operating with fact-finding missions should these become necessary.
- In implementing the Convention, will South Africa need to allocate funding at a national level in order to contribute, as required by Article 14, to the cost of Meetings of States Parties?
- Does our legislation enhance co-operation between the DFA and DOD on this issue?
- Does it allow for South African citizens to access information pertaining to landmines in South Africa and indeed to call for and/or "inspect" mines retained, past production facilities, etc. (rather than just allowing for international "Fact-Finding Missions").
- Finally, in the words of the Declaration of the Third Meeting of the States Parties, does this legislation "reconfirm our [South Africa's] conviction to make anti-personnel mines objects of the past, our obligation to assist those who have fallen victim to this terror, and our shared responsibility to the memories of those whose lives have been lost as a result of the use of these weapons, including those killed as a result of their dedication to helping others by clearing mined areas or providing humanitarian assistance".
Discussion centred, in the main, on the following points:
- Implications for agents and contractors to the Departments of Defence and the Police Services;
- The jurisdiction of the legislation would need to cover all South African nationals - even those operating beyond South Africa's national borders;
- Implications for South African National Defence Force (SANDF) with respect to 'assistance' regarding combined operations with non-signatories, as well as technology transfers in respect of the OPDS protocol;
- Reduction of stockpiles while keeping in mind the need to respond to the development of new technology, in respect to mine clearance and safe disposal;
- Definitions to be fleshed out: 'anti-personnel mine', definition of a 'person' (as it also relates to South Africans and South African companies operating abroad), extra-territorial application of the legislation, issue of APM components, fuses and intellectual property, claymores etc;
- Anti-vehicle mines with anti-handling devices and alternatives to APMs;
- Question of reporting by South African companies/individuals involved in humanitarian demining;
- Question of ready-access to information related to mine clearance, technology, stockpiles, etc. in terms of timeous reporting;
- How can the legislation be integrated with effective regulatory measures to ensure effective regulation of the South African demining industry?;
- Question of criteria for selection of, and powers of, domestic and international experts;
- South African position vis-a-vis allowing other governments to stockpile APMs on territory under South African jurisdiction or transiting through South African territory;
- Question of production to also extend to design;
- Can this legislation also regulate the demining industry and thereby prevent 'fly-by-night' companies and those who do not adhere to internationally agreed standards? In other words, what impact can this legislation have on South African de-mining companies with respect to, e.g. codes of conduct, maintaining standards etc.
- Can this legislation facilitate the social and economic re-integration of mine survivors?
- Obligations of other militaries who come to South Africa.
- Stockpiling of APMs by another country on South African land.
- Access to information and facilities by South African civil society - verification by CSOs and other independent bodies.
- The banning of APM components and fuses.
- Regulations that may be needed to make the Act implementable.
- Agents, brokers and contractors.
- Stocks retained and used - implications for when these stocks are depleted, e.g. manufacture, import etc (this also has implications for the discovery of new mines and the need to develop means to deal with them). If there were to be an exemption for acquiring new mines developed by other countries in order to counter them, how will this be controlled and what exactly will be exempt - production, importation etc?
- What, if any, are the obligations of South African de-mining companies to provide information.
- Responsibility regarding territory held under joint control, e.g. Trans-frontier Parks.
- Question of the transfer of intellectual property.
- Mines being transferred through South African waters.
- The relationship between 'domestic inspectors' and the South African Police. Clarity was sort on 'searching without a warrant'.
- Also raised was the possibility of earmarking funds raised through penal sanctions for victim assistance programmes.
Many of the above questions and issues have, it seems, been addressed in the Bill. What I would now like to do is highlight and flesh out some of them - ones which either have or haven't been addressed in the Bill:
- Claymore-type directional fragmentation mines: Our legislation needed to cover all munitions that have the same effect as an APMs. Are Claymore-type directional fragmentation mines included in our ban? A "Claymore mine" is a generic term for a round or rectangular directional fragmentation munition that can function either in a command-detonated or victim-activated mode. They are mostly mounted above ground level and are designed to have anti-personnel effects. However, some of the larger variants of this type can be used to damage light vehicles. While it is true that when operated in the command-detonated mode, they do not meet the definition of an anti-personnel mine in the Convention, a total of nine States Parties have signalled their intention to destroy their stocks of Claymore-type mines, aside from those retained under Article 3 for training or research purposes, or to not retain any Claymore-type mines: Bolivia, Bosnia and Herzegovina, Bulgaria, Cambodia, Croatia, Ecuador, Jordan, Nicaragua, and Peru.
No indication has been received from South Africa which is known to have at one time produced, imported, or stockpiled Claymore-type mines on their interpretation of this issue. Does South Africa recognise that when capable of activation by tripwires they should be classified as APMs and are therefore banned? If we opt to keep our stock of claymore-type mines, does our legislation ensure that the technical steps and modifications necessary to ensure command detonation only are carried out.
- Anti-handling devices: Anti-vehicle mines sometimes have a device that is designed to trigger off the mine when it is moved or approached. These so-called "anti-handling devices" represent a lethal danger to mine disposal experts as well as to the people living close to the minefields. Does our legislation recognise that many anti-tank mines with anti-handling devices (which are not covered by the Treaty) act like APMs?
During the Oslo treaty negotiations in 1997, it was emphasised by Norway and others, that if an Anti-vehicle Mine (AVM) with an Anti-handling Device (AHD) explodes from an unintentional act of a person, it is to be considered an anti-personnel mine, and banned under the treaty. This language was eventually accepted by all delegations without dissent. The ICRC, Human Rights Watch, Landmine Action (UK), and the German Initiative to Ban Landmines have all produced lists and publications regarding AVMs of concern.
The Bolivian Defense Minister has stated that Bolivia is not using and does not reserve the right to use other munitions which might function like anti-personnel mines and pose danger to civilians, such as antitank mines with anti-handling devices.
Italy, in its recent CCW National Annual Report, noted that its stringent national legislation banning anti-personnel landmines (Law 374/97), "adopts a wide definition of [anti-personnel mines] which does not foresee an exception for anti-vehicle mines equipped with anti-handling devices."
Slovakia has expressed that it unreservedly supports the destruction of anti-vehicle landmines and anti-handling devices on a world-wide basis."
Acting upon recommendations made in Standing Committee meetings in 2000, the ICRC hosted a technical experts meeting on "anti-vehicle mines with sensitive fuses or with sensitive anti-handling devices" on 13-14 March 2001 in Geneva. Discussion at the seminar centred on identifying the specific technical measures that States Parties can adopt to minimise the risk to civilians posed by AVMs with sensitive fuze mechanisms and anti-handling devices that might be activated by an unintentional act. Emerging from the seminar was a set of recommendations for best practices regarding the design and use of sensitive fuzes and anti-handling devices. Key among them were establishing a minimum pressure threshold of 150 kilograms for AVMs and discontinuing use of AVMs with tripwires and tilt rod fuzes, because they function as anti-personnel mines.
At the Standing Committee on the General Status and Operation of the Mine Ban Treaty that met in Geneva on 11 May, several states stated the principle that the Treaty already prohibits APMs and anti-vehicle mines with anti-handling devices acting as APMs. Belgian has stated that the Mine Ban Treaty prohibits the use of anti-vehicle mines equipped with an anti-handling device made or modified so as to explode because of an unintended action. Italy's national legislation prohibits all anti-handling devices.
- Combined Operations: We need to prevent loopholes that may effectively allow military personnel from South Africa to participate in the deployment of anti-personnel landmines if they are in the company of 'members of the armed forces of one or more States that are not parties to the Ottawa Convention. Another example then is the word 'assist' (Article 1c). In terms of combined operations, what does it mean to "assist"? Can South African troops transport mines on behalf of non-State Parties? Surely not! The ICBL has raised concerns about the possible participation of States Parties in joint military operations with non-States Parties that use anti-personnel landmines. There is serious concern about the consistency of such operations with the treaty's Article 1 obligation for a State Party "never under any circumstance...[t]o assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention." Such joint operations at the least would go against the spirit of a treaty aimed at an end to all possession and use of anti-personnel mines. In particular, the question has been raised as to what "assist" means in the treaty's Article 1. A number of governments have interpreted this to mean "active" or "direct" assistance in actual laying of mines, and not other types of assistance in joint operations, such as provision of fuel or security. This narrow interpretation of assistance is of concern to MASA; in keeping with the spirit of a treaty aimed at total eradication of the weapon, interpretation of assistance should be as broad as possible.
South Africa should make clear the nature of their support for other armed forces that may be using anti-personnel mines, and make clear their views with regard to the legality under the Mine Ban Treaty of their military operations with these armed forces. As a party to the treaty, South Africa, through this legislation, should state categorically that it will not participate in combined operations with any force that uses anti-personnel mines.
The Belgian Foreign Ministry stated in June 2000 and again in March 2001, "Any Belgian unit engaged in joint operations outside national territory cannot use anti-personnel mines, in any circumstances, whatever framework and subordination mode this engagement is undergoing."
Canada in May 2001 provided an explicit statement on the issue: "For Canada, this subject is relevant in addressing matters related to interoperability as a member of the North Atlantic Treaty Organization. With this in mind, in 1998-even before the Convention entered in to force-the Chief of the Defence Staff communicated the following to all Canadian Forces personnel: Canada may participate in combined operations with a state that is not Party to the Convention. Canadian contingents may not, however, use anti-personnel mines and the Canadian Forces may not request, even indirectly, the use of anti-personnel mines by others.
The Ministry of Defense of Denmark has stated, "in the participation in joint military operations, Denmark does not involve itself in activities that are related to the laying of anti-personnel mines."
The Minister of Defense of France already declared in 1998 that France "would unreservedly enforce the Ottawa Treaty. France will prohibit the planned or actual use of anti-personnel mines in any military operation whatsoever by its military personnel. Furthermore, France will refuse to agree to rules of engagement in any military operation calling for the use of anti-personnel mines." In October 1999, the Minister of Foreign Affairs referred to directives forbidding French military personnel to use anti-personnel mines, to participate in planning operations employing use of anti-personnel mines, or to give their agreement to any document mentioning possible use.
The Ministry of Foreign Affairs of Hungary states, "Hungarian soldiers are not allowed to use anti-personnel mines abroad during NATO army exercises, and foreign soldiers are not allowed to use anti-personnel mines in Hungary during NATO army exercises."
Representatives of Italy have stated that Italian forces cannot be involved in activities not compatible with the Mine Ban Treaty, and transit is allowed only for destruction.
Representatives of the Netherlands reiterated in May 2001 that Dutch forces, "will not help in the laying, transporting or in any other way, nor ask for a foreign commander to do so" in joint military operations, and "if asked to do so by a foreign commander, will not do so." The representative added that this was set out in a parliamentary answer.
We believe that the participation by South Africa in such operations is contrary to the spirit of the treaty. We call on South Africa to insist that any non-signatories do not use anti-personnel mines in joint operations, and through this legislation to refuse to take part in joint operations that involve use of anti-personnel mines.
- Stockpiling Anti-Personnel Mines on South African Territory: We believe that it would violate the spirit of the treaty for South Africa to permit any government or entity to stockpile anti-personnel mines on its territory, and would violate the letter of the treaty if those stocks are under its jurisdiction or control. Thus if South Africa wilfully permits transit of anti-personnel mines which are destined for use in combat, then this would be violating the spirit of the Mine Ban Treaty or violating the Article 1 ban on assistance to an act prohibited by the treaty, and possibly violating the Article 1 prohibition on transfer. The ICRC has also expressed its view that the treaty prohibits transiting of mines.
In perusing the Bill as it stands, MASA and South African civil society generally is pleased that many of its suggestions have been taken up by the drafting Committee. To be honest, we would however have preferred that the definition as contained in a previous draft was retained. Namely, that "for the purposes of this Act, a mine other than an anti-personnel mine shall be considered to be an anti-personnel mine if it is designed to be or can be detonated by:
- a trip-wire or break-wire;
- a direct or indirect weight less than 150 kilograms;
- a sensitive fuse which can be unintentionally activated by the presence, proximity or contact of a person;
- an anti-handling device which can be unintentionally activated by the presence, proximity or contact of a person;
any other mine or device which performs in a manner consistent with Section 1(c)(i);
Southern African Catholic Bishops' Conference
Southern African Catholic Bishops' Conference
PARLIAMENTARY LIAISON OFFICE
Southern African Catholic Bishops' Conference
Submission to the Portfolio Committee on Defence
Anti-personnel Mines Prohibition Bill
(B44 - 2002)
- The Southern African Catholic Bishops' Conference welcomes the opportunity to make a submission to you, and thanks this Committee for inviting us to make comments on this very important piece of legislation.
- The Church has a long history of condemning the use of landmines and calling for their complete prohibition and eradication. The reasons for this are many. One only has to look at the tragic consequences that landmines have in the past and continue to play on the civilian populations of Africa and especially southern Africa. Women and children, often the most vulnerable in our society, continue to be worst afflicted by injury or even death. For this reason we welcome the commitment by nations around the world to do away with anti-personnel mines as a significant step towards peace, human progress and development. The indiscriminate devastation caused by these devices is eloquently set out in the Preamble to the Bill, as is the need for the eradication of the thousands of mines already deployed and still threatening humanity in numerous countries.
- We congratulate the government of the Republic for ensuring that South Africa was among the first nations to sign the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction. Likewise, we congratulate the Ministry of Defence for introducing the present comprehensive Bill which, we hope, will enjoy the support of all parties.
- Our comments on the content of the Bill are limited to the following:
- The use of the conjunctive 'and' between (b) and (c) in clause 5 has the effect, on an ordinary reading, of requiring all three of (a), (b) and (c) to be present before an offence is committed. The clear intention, though, is that an offence is committed if any of these three sub-clauses is contravened. To remove any potential problem, the word 'and' should be replaced with 'or'.
- The same consideration applies to clause 28(1). Clearly, the gathering of information may be necessary for either (a) or (b).
- The wording of clause 7(1)(a) is ambiguous. It is not clear that both the exemption from the prohibitions set out in clause 5 and the authorisation to possess mines relate only to purposes of mine detection, clearance and destruction. It is possible to interpret this clause as permitting the Minister to exempt certain entities from the clause 5 prohibitions on the one hand, and on the other, to authorise possession for the purposes set out.
- This ambiguity can be removed by re-wording clause 7(1)(a) to read as follows:
- "For the purposes of developing and conducting training in mine-detection, mine-clearance or mine-destruction techniques, or of the destruction of anti-personnel mines, the Minister may exempt any organ of state or any employee of such organ, any agent or any other person from a prohibition referred to in section 5 and may authorise such organ, employee, agent or person to possess anti-personnel mines."
- It should be made clear that the transfer of anti-personnel mines provided for in clause 8 can take place only in terms of the exemption and authorisation provided for in clause 7(1). This can be done by adding after the word 'Minister' in clause 8 the words 'and subject to the provisions of section 7(1).'
- We end with two more general considerations.
- 4.1. The growing movement to ban the production and use of anti-personnel mines raises the question of other kinds of landmines. It is well-known that anti-vehicle mines, for example, are set off by civilian vehicles, even farm-carts. This is a serious obstacle to development in many poor countries, not to mention the terrible suffering of the direct victims of these mines. We therefore encourage this Committee to address the issue of all landmines, in the hope that South Africa will give the lead in this respect as well.
- 4.2. A number of countries, including some major powers, have so far refused to sign the Convention. They continue to produce anti-personnel mines, to export them and in some cases to use them. As long as this situation persists the efforts of the rest of the world will be undermined. The Church has called on countries to create a safer, more fraternal world to create a "civilisation of love" and not to feed a "culture of death" by the application of our common humanity. Accordingly, through this Committee, we urge government to pursue all possible diplomatic and other measures to persuade those countries which have not signed the Convention to do so.
South African Council of Churches
Anti-Personnel Landmines Bill
B44 - 2002
Submission to the Portfolio Committee on Defence
18 October 2002
- The South African Council of Churches (SACC) is the facilitating body for a fellowship of 24 Christian churches, together with one observer-member and associated para-church organisations. Founded in 1968, the SACC includes among its members Protestant, Catholic, African Independent, and Pentecostal churches, representing the majority of Christians in South Africa. SACC members are committed to expressing jointly, through proclamation and programmes, the united witness of the church in South Africa, including matters of national debate.
- The SACC wholeheartedly welcomes the introduction of the Anti-Personnel Landmines Bill. Anti-personnel landmines have had a devastating impact on the people of Southern Africa, which remains one of the most-mined regions of the world. African nations have long been in the forefront of the global campaign to abolish the production, sale and use of this vicious weapon.
- South Africa has been a particularly ardent proponent of the landmines ban. The third signatory to the landmark Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Landmines and on their Destruction, South Africa has already completed the destruction of its stockpiles of anti-personnel landmines. Now it is moving to give legislative force to its international obligations in terms of the treaty. We applaud the government's decision to eschew a minimalist approach to the codification of its treaty obligations, opting instead to craft legislation that strengthens and expands the domestic application of the provisions of the treaty. In this context, we are especially pleased by the Bill's articulation of the state's duty to destroy anti-personnel landmines and by the authority which the Bill gives the state to take part in international fact-finding missions outside the Republic.
- We recognise that the proposed legislation has been extensively workshopped with stakeholders throughout the drafting process. In particular, we appreciate the efforts made to consult civil society organisations and the demining industry before finalising the Bill.
- Although we unreservedly support the intention underlying this legislation, we believe that there are a few technical matters worth of further consideration by the Portfolio Committee on Defence. These include: the definitions of "import", "export" and "transfer"; the disclosure of exemptions granted in terms of section 7; the establishment of fixed deadlines for the destruction of anti-personnel landmines, and the protection of "sensitive" information.
- The definitions of "import" and "export" in section 1 refer specifically and exclusively to the import and export of (assembled) anti-personnel landmines. However, sec 5(b) also prohibits the import or export of component parts. We suggest that this slight inconsistency be addressed by inserting the words "or component parts thereof" after the words "anti-personnel landmines" throughout these two definitions.
- Section 2(b) (Objects of the Act) refers to section 231(3) of the Constitution as requiring the enactment of legislation to entrench the provisions of the convention in law. It appears, however, that section 231(4) is the operative clause requiring such action.
- The various prohibitions set out in section 5 are joined by "and", implying that the prohibition only applies to a person who engages in one of the activities in each of the three categories listed. We believe that section 5(b) should end with "or" so that the prohibition applies to any activity in any of the three categories. This point applies in a similar fashion to section 28(1) dealing with the Minister's power to gather information.
- Article 3 of the Convention permits "the retention or transfer of a number of anti-personnel mines for the development of and training in mine detection, mine clearance, or mine destruction techniques". This exception is incorporated in Section 7(1)(a) of the Bill, which empowers the Minister to exempt any organ of state or employee of such organ or any other person from a prohibition set out in section 5. It also allows the Minister to authorise such persons to possess anti-personnel landmines for the training purposes defined in the Convention. However, the wording of Section 7(1)(a) is ambiguous as the limitation on the scope of the Minister's powers could be interpreted to apply only to the authorisation to possess and not also the exemption from section 5. Potential ambiguity could be eliminated by reformatting the section as follows:
- Section 27(c) requires the Minister to maintain a record of all such exemptions granted in terms of Section 7. We would propose that the Minister also be obliged to publish in the Gazette notification of any exemptions granted in terms of this clause.
- Section 13(1) requires the Minister to ensure the destruction of all stockpiled and emplaced mines. However, no deadline is fixed for the completion of such destruction. Notwithstanding the government's pre-emptive action in destroying stockpiled landmines, we would suggest that the legislation set fixed deadlines for the completion of these tasks, in line with the requirements set out in Articles 4 and 5 of the Convention (four years from entry into force of the treaty for stockpiled landmines, ten years for emplaced landmines).
Definitions of "import" and "export"
Authorised possession of landmines
7.(1)(a) The Minister may -
(i) exempt any organ of state or any employee of such organ, any agent or any other person from a prohibition referred to in section 5; and
(ii) authorise any such organ, employee, agent or person to possess anti-personnel mines
for the purposes of developing and conducting training in mine-detection, mine-clearance or mine-destruction techniques or for their destruction.
Deadlines for destruction of stockpiled and emplaced mines
- The SACC supports prompt enactment of the Anti-Personnel Landmines Bill. We further urge the government to maintain its leading role in the global campaign to ban landmines by applying moral and diplomatic pressure on those states that have not yet signed the Convention - including the United States, Russia and China and important landmine producers such as India - to encourage them to do so as a matter of urgency. As a leading member of the African Union, South Africa should give particular attention to those African nations that have not yet signed the Convention (Morocco, Libya, Egypt and Somalia) and should assist those countries that are signatories or states parties to fulfil promptly their obligations in terms of the treaty.
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