UN Optional Protocol on Children in Armed Conflict, SADC Mutual Defence Pact: briefing

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SECURITY AND CONSTTUTIONAL AFFAIRS SELECT COMMITTEE

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
10 March 2005
UN Optional Protocol on Children in Armed Conflict, SADC Mutual Defence Pact: briefing BY Defence Department

Chairperson
: Mr L Mokoena (ANC)

Documents handed out:
Southern African Development Community Mutual Defence Pact
Explanatory Memorandum by Southern African Development Community
Southern African Development Community Mutual Defence Pact: Department PowerPoint presentation
United Nations Optional Protocol to the Convention on the Rights of the Child on the Involvement of the Child in Armed Conflicts
United Nations Optional Protocol to the Convention on the Rights of the Child on the Involvement of the Child in Armed Conflicts: Department PowerPoint presentation

SUMMARY
The Department of Defence presented two Protocols: the United Nations Optional Protocol to the Convention on the Rights of the Child on the Involvement of the Child in Armed Conflicts as well as the Southern African Development Community Mutual Defence Pact. It endorsed the Protocol and the Pact after raising concerns about the absence of an enforcement mechanisms for the Protocol.

MINUTES

United Nations Convention on the Rights of the Child
Dr M Ledwaba, Department Chief Director of Human Resources, stated that the United Nations Convention on the Rights of the Child, established in 1995, that parties agree to ensure that children under the age of 18 years do not participate in armed conflict. The Optional Protocol of which South Africa was a signatory states that state parties do not allow children who were already part of their armed forces to participate in arm hostilities. The Protocol raises the age of participation from 15 to 18 years, however, it allows for voluntary participation with permission from a parent or guardian.

The increase of the minimum age was not binding on military schools or schools under the control of the armed forces. It obliged states to demobilise and release children under the age of 18 years, institute legal measures to facilitate the implementation of the protocol, record all steps taken to implement the Protocol and lodge a declaration of the age at which the state will permit voluntary recruitment. South Africa had already aligned itself with the Protocol. In its new Defence Act promulgated in 2002, subsection 52(1) raised the age from 17, as exercised by the old Defence Act of 1952, to 18 years. The Protocol also obliged non-state actors to abide by these Acts.

Discussion
Mr S Shiceka (ANC) was concerned that states may not have the power to prevent rebel movements from disobeying the Protocol. He added that even although South Africa was not in the same situation as many other African countries with rebel forces, the future could not be predicted. In this regard, the country would not have the power to bind rebel groups to comply with the Protocol should conflict erupt. It was impossible for the state to dictate to a rival rebel movement.

Mr N Njikela, Department Deputy Director, Legal Support, stated that under the Constitution there was only one force in South Africa, the South African Defence Force (SADF). However, it was difficult to predict if events such as rebel movement action would disrupt peace in the future. It was in light of this, that the Protocol required that mechanisms be installed by countries in the likelihood that unexpected situations arose such as a rebellion movement.

The Chairperson stated that the decision of the country to align itself with the Protocol was a noble one because South Africa wanted to displayed democracy at its fullest. He added that the issue of child rights was high on the country’s agenda, but wanted to know if there was any political mechanism to deal with signatories who violated the Protocol.

He stated that in Bujumbura, children were hosted at camps and were demanding that they be integrated into the country’s forces. He wanted to know what was being done to assist countries in these situations. He further asked about monitoring mechanisms that were in place to prevent abuse of children.

Dr Ledwaba stated that Article 4 of the Protocol clearly states that no persons under the age of 18 years shall take part in any hostilities. The Defence Act of the country had also clearly stipulated this.

Mr Njikela added that countries were required to have mechanisms in place and in the case where children were already recruited in a armed force, they should not be allow them to take part in hostilities. In the case where the children under 18 years were recruited voluntarily, the recruiting force was responsible to ensure that they did not participate in any hostilities until they reached 18 years.

Mr Nick Sendall, Department Chief Director of Policy and Planning, added that the Protocol did not have the power of investigation. It only provides that information would be requested from state parties. In Article 8 of the protocol, it requires that each party report within two years on actions that had been taken to abide by the Protocol. In subsection (3), the Committee on the Rights of the Child may request information from state parties on actions that had been taken. The Protocol as such only ensured the power to request information. In the case of South Africa, it could request bilateral information.

Mr Njikela stated that where it was observed that a particular country that had voluntarily signed the Protocol was not co-operating, it was the obligation of the United Nations or the international community to act. The difficulty of the issue was that individual countries could not act on their own without the consensus of member states. If South Africa felt that it had to act, it must do so at an international level.

Mr Sendall stated that Article 3 (5) provides for children under the age of 18 years to train and school at military institutions. Such schools were mostly found in the United Kingdom and the United States. These schools were controlled by the military and were not open to ordinary school children. He added that the section had been a compromise.

Mr Shiceka stated that there were many weaknesses in the Protocol. As a state, decisions were taken with good intentions, but these decisions were never implemented. The African Union had developed monitoring mechanisms, but the Protocol had no monitoring mechanisms.

The Chairperson cited an example of two countries that continued to supply one side to a conflict with arms even though they had signed a Protocol not to supply either side. He concluded that because the protocol did not contain any mechanisms to deal with the issue, nothing would happen.

Mr Njikela stated that the present protocol was only an optional protocol to the Convention. The Convention had earlier stated that 15 years of age was the cut-off point for the recruitment of children.

Mr Sendall added that the South African Defence Act of 2002 was very strong on the matter. It was clearly stipulated that no one under the age of 18 would be recruited into the SADF.

Mr Shiceka stated that the Committee had the right to request an amendment, but it would become a tedious process. He suggested that in the future, it be made necessary that the Protocol give the right to the use of force. He proposed that the Committee endorse the protocol.

Mr J Le Roux (DA) seconded the proposal and the Committee then endorsed the protocol.

Southern African Mutual Defence Pact
Mr Sendall stated that the pact was one of the pieces of work influencing the common African Defence and Security Policy. Of the countries signatory to the pact, only Botswana, Mauritius and Tanzania had ratified it. South Africa had presented it to Parliament for ratification in November 2004. Within the pact there was a strong commitment to promote peace and stability among the states parties of the Southern African Development Community (SADC).

Discussion
Mr W Le Roux (DA) stated that there was information that the President of the country had already signed the document and, as such, the Committee did not have the power to overrule the President’s signature. In light of this, he would acknowledge and agree to the document.

Mr Shiceka proposed that the Committee invite an expert on protocols to their next meeting so as to consider issues such as the one raised by Mr Le Roux. He asked for clarification on Article 6 of the Pact.

Mr A Moseki (ANC) referred to the issue of Togo and requested Mr Sendall to comment on this in respect to Article 6 of the Pact.

Mr Sendall stated that if Togo had been a member of SADC, countries that fall within the region would have referred the issue to the Secretariat of the SADC Organ which would have taken a decision to approach the country involved. Hypothetically, the issue related exactly to the article.

Mr Shiceka wanted to know if the country had the capability for a regional army. He also wanted to know if the Swaziland army was going to be a part of this regional army. He lastly suggested that the Department invite the Committee to some of its manoeuvres and operations.

Mr Sendall stated that the in terms of regional capability, the Mutual Defence Pact was seen as a common African defence and security policy, building the block towards common defence and security on the continent. The Economic Community of West African States (ECOWAS) had similar a non-aggression pact. He asserted that the countries involved in the SADC Pact were forming a stand-by regiment that would respond collectively to humanitarian relief, peace support and peace enforcement operations.

He added that in June 2004, SADC and the African Union had agreed that by 2005 an organisation that would deal with peace missions at a regional level should be established and work towards developing and conducting peace missions by 2010. The work was ongoing, as countries were required to contribute forces to the regiment. In this regard, Swaziland was also contributing a regiment for this force.

The Chairperson wanted clarification on Article 8 as it contradicted the issue of South Africa hosting Haiti’s former leader, President Aristide. In Haiti the opposition saw South Africa not as a friendly country because they believe that Mr Aristide should be extradited to the country to face justice.

Mr Sendall stated that the concern raised by the Chair on Article 8, had also been raised by the Portfolio Committee. However, in South Africa the country laws apply and as long as no one within the country was in transgression of the law, he or she was free to stay.

Mr Njikela added that any international agreement between countries were subject to ratification. The mere fact that the President had signed it did not mean that the agreement had been accepted by South Africa. It would have to go through both houses of Parliament before been ratified.

The Committee endorsed the Protocol.

The meeting was adjourned.

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