Land Mine Convention: briefing by Department

Meeting report

FOREIGN AFFAIRS PORTFOLIO COMMITTEE
21 April 1998
LAND MINE CONVENTION: BRIEFING BY THE DEPARTMENT

Documents handed out:
1 Explanatory Memorandum Concerning The Convention On The Prohibition Of The Use, Stockpiling, Production And Transfer Of Anti-Personnel Mines And On Their Destruction

2 Explanatory Memorandum Concerning South Africa Intent To Be Bound By The Amended Protocol II And A New Protocol IV Of The Convention On Prohibition Or Restrictions On The Use Of Certain Conventional Weapons Which May Be Deemed To Be Excessively Injurious Or To Have Indiscriminate Effects (CCW) (see appendix)


The committee was briefed by the Department official, Mr. Lumbert, on the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and the Convention on Prohibition or Restrictions on the Use of Certain Conventional Weapons (CCW). The history of South Africa’s policy on land mines was also detailed.

The chairperson, E.I. Ebrahim (ANC), mentioned that although the Portfolio Committee on Defence had been invited to attend the meeting, none of its members had done so. Questions of the committee members were fielded by Mr. Lumbert. One member questioned whether the use of "smart" land mines is applicable to South Africa. The Department responded that although Protocol II does allow for "smart" land mines, South Africa has already banned anti-personnel mines. The Department also discussed which countries had already ratified the conventions, eight in all, and indicated that 32 more countries must also ratify (for a total of 40). E. Saloojee (ANC) submitted to the committee that because of the interest South Africa has shown on this issue, ratification is now imperative.

Chairperson Ebrahim read the following resolution recommending that the house approve the convention, to which there was unanimous approval:

REPORT
The Portfolio Committee on Foreign Affairs, having considered the request for approval by Parliament, in terms of section 231(2) of the Constitution, of the - (A) Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction; (B) South Africa’s Consent to be Bound to the Amended Protocol II and a new Protocol IV of the Convention on Prohibition or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects (CCW), referred to it, begs to recommend that the House, approve the said Convention.

MR E I EBRAHIM
Chairperson

Committee Rooms
Parliament
21.04.98


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EXPLANATORY MEMORANDUM CONCERNING THE CONVENTION ON THE
PROHIBITION OF THE USE, STOCKPILING, PRODUCTION AND TRANSFER
OF ANTI-PERSONNEL MINES AND ON THEIR DESTRUCTION

A. Cabinet approval memo ref CAB/ADG183 dated 27 November 1997
B Presidential Minute dated 27 November 1997
C. Approval from the Chief State Law Adviser International Law dated 10 November 1997
D. Approval from the Department of Justice dated 23 October 1997
E. Approval from the Office of the Secretary of Defence dated 3 November 1997
F. Copy of the Convention

The Minister of Foreign Affairs, Mr Alfred Nzo, was among the first three dignitaries to sign the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, in Ottawa, Canada on 3 December 1997.

The South African Cabinet decided on 19 February 1997 to prohibit the use, development, production and stockpiling of anti-personnel mines with immediate effect. The South African Cabinet further decided that South Africa's existing stockpile of anti-personnel mines would be destroyed as soon as possible. Cabinet also reaffirmed South Africa' support of efforts to achieve an international prohibition on anti -personnel mines.

The Oslo Diplomatic Conference on an International Total Ban on Anti-Personnel Landmines was held from 1-18 September 1997 in Oslo, Norway with the objective to negotiate a Convention banning anti-personnel mines. The Conference was chaired by Ambassador JS Selebi, South Africa's Permanent Representative to the United Nations in Geneva.

On 18 September 1997 the Conference adopted the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction.

The Convention sets a new norm in international humanitarian law where a weapon of war has been banned due to its indiscriminate effects and the superfluous injury it causes to civilians. The Convention places an obligation ~n States Parties to, without exceptions or reservations, ban anti-personnel mines and ensure their destruction. The Convention was opened for signature on 3 December 1997 in Ottawa, Canada, and will enter into force after 40 instruments of ratification or accession have been deposited with the Depository

The Conference was the result of an initiative started by Canada in October 1996 to build momentum towards the earliest possible conclusion of a legally-binding international agreement to ban anti-personnel mines. This initiative was borne out of recognition that the extreme humanitarian and socioeconomic costs associated with the use of these mines requires urgent action on the part of the international community to ban and eliminate this scourge to society This initiative has come to be known as the Ottawa Process which has as its main objective a fast track process to concluding a anti-personnel mine ban

Chronology of South Africa's policy on landmines
1993 -
No coherent government policy to address the problems caused by landmines.

1994 -
Moratorium on the marketing, export and transit of all types of landmines.

1995 -
Accession to the Certain Conventional Weapons Convention (CCW) on 13 September 1995. Amongst others, this Convention restricts the use of landmines.

1996 -
Ban on the export of all types of landmines and the suspension of the operational use of antipersonnel landmines. Support the Canadian initiative to ensure "the earliest possible conclusion of a legally binding international agreement to ban anti-personnel landmines."

1997 -
19 February, Cabinet approved the prohibition on the use, development, production and stockpiling of anti-personnel landmines. Destruction of stockpiled anti-personnel landmines commences.

1997 -
19 November 1997 Cabinet approved for South Africa to sign the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction;

Chronology of international campaign by States to restrict the use and ban anti-personnel landmines

1994 -
United Nations resolution calling on States to adopt a moratorium on the export of anti-personnel and mine 5

1995 -
Review Conference of the Certain Convention Weapons Convention (CCW)

1996 -
Adoption of revised Protocol II of CCW which deals with landmines.
Canada launches initiative to ban antipersonnel landmines.
United Nations adopts resolution on an agreement to ban such landmines

1997 -
Various regional initiatives, including an OAU meeting, in support of a global ban on anti-personnel landmines.

Experts meet in Vienna to provide inputs into what has become known as the Austrian draft text which will be the basis for negotiation in Oslo.

Brussels meeting in June on landmines and the adoption of the Brussels Declaration.

18 September 1997 the Oslo Diplomatic Conference adopts the "Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of AntiPersonnel Mines and on their Destruction".

Signing ceremony in Ottawa on 3-4 December 1997.

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EXPLANATORY MEMORANDUM CONCERINING SOUTH AFRICA INTENT TO BE
BOUND BY THE AMENDED PROTOCOL II AND A NEW PROTOCOL IV OF THE CONVENTION ON PROHIBITION OR RESTRICTIONS ON THE USE OF
CERTAIN CONVENTIONAL WEAPONS WHICH MAY BE DEEMED TO BE
EXCESSIVELY INJURIOUS OR TO HAVE INDISCRIMINATE EFFECTS (CCW)

A. Approval from the Chief State Law Adviser International Law dated 22 August 1997
B. Approval from the Department of Justice dated 24 July 1997
C. Approval from the Office of the Secretary of Defence dated 3 November 1997
D. Copy of the 1980 Convention on Prohibitions or Restrictions on the Use of Conventional Weapons which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects (CCW)
E. The Amended Protocol II (restrictions on the use of mines, booby traps and other devices)
F. The new Protocol IV (Blinding Laser Weapons)

On 31 August 1994 Cabinet approved that South Africa should become a State Party to the Convention on Prohibitions or Restrictions on the Use of Conventional Weapons which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects (CCW)

South Africa acceded to the CCW on 13 September 1995 and became a State Party to the Convention on 13 March 1996.

This decision was based, inter alia, on South Africa's commitment to a general policy of non-proliferation and arms control. It also demonstrated South Africa's willingness to pay its highest regard to international humanitarian law, on which this Convention is based.

This Convention, which was concluded in 1980 in Geneva, was opened for signature by all Member States of the United Nations for a period of twelve months from 10 April 1981. It came into force on 2 December 1983 and, has been ratified by 66 countries thus far.

The Convention includes the Treaty and four Protocols entitled respectively

- Protocol on Non-detectable Fragments (I)

- Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-traps and Other Devises (II) (Protocol II as amended and adopted on 3 May 1996 still has to enter
into force, which will take place after 20 High Contracting Parties have ratified the amended Protocol)

- Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (III)

- Protocol on Blinding Laser Weapons (IV) (Adopted at the CCW Review Conference in Vienna on 13 October 1995 but still has to enter into force)

The objective of the Convention is to prohibit or restrict the use of the above-mentioned weapons Protocol II is the most substantive of the four Protocols to the Convention and deals mainly with landmines. On 22 December 1993 States Parties to the CCW requested the United Nations Secretary General, as the Depository of the Convention, to convene a review conference of the Convention with the aim of strengthening its prohibitions on certain types of conventional weapons including landmines and booby-traps (Protocol II) and to consider a new protocol on blinding laser weapons

The need for reviewing was prompted inter alia; because only a limited number of states have ratified/acceded to the CCW thereby limiting its universality, it does not apply to internal conflicts, no clear responsibility to remove landmines after a conflict, no prohibition on the use of non-detectable landmines, weak provisions for the use of remotely delivered landmines and no effective mechanism to ensure the implementation of the CCW.

Review Conferences

A Review Conference of the CCW, which took place in Vienna from 25 September 1995 - 13 October 1995 ended with the adoption of a new Protocol IV on Blinding Laser Weapons but failed to reach agreement on a revised Protocol II on the use of landmines. It was consequently decided to suspend the Conference and to hold resumed sessions in Geneva from 15 - 19 January 1996 and 22 April 1996 - 3 May l996. South Africa attended the first two sessions of the Review Conference as an observer and the final session in April/May 1996 as a State Party.

On 3 May 1996 Protocol II as amended was finally adopted. The following elements represent some of the most significant improvements of Protocol II

-The scope of the protocol has been extended to include conflicts of a non-international character, a significant improvement given that most landmines are used in internal conflicts.
-The general humanitarian restrictions in Article 3 are stronger, requiring greater discrimination between civilian and military objectives, prohibiting anti-sensing devices, and requiring advance warning of mines, booby-traps and other devices
- The use of non-detectable landmines has been prohibited (subject to an optional deferral period of nine years from entry into force)
- The use of manually emplaced anti-personnel landmines is further restricted, requiring their use only in fenced and marked areas.
- The restrictions on the use of remotely-delivered landmines have been strengthened, with a mandatory recording requirement.
- Certain prohibitions and restrictions on the transfer of landmines have been introduced.
- Broader obligations to protect peace-keeping and other UN and humanitarian missions have been imposed on parties to a conflict.
- A lengthy article has been introduced on technological cooperation and assistance (the first such article in an international humanitarian law instrument)
- Annual meetings of High Contracting Parties will take place.
- An article has been introduced requiring infringements of the Protocol to be punished under national criminal law.

South Africa joined three interpretive statements on articles of the revised Protocol:

Article 1:
"It is understood that the provisions of the protocol shall, as the context requires, be observed at all times". (statement delivered by Belgium on behalf of a group of countries)

Article 2(3):
Germany made a statement on the word 'primarily' in the definition of an anti-personnel mine, in which it was stated that the word 'primarily' was understood to distinguish an APL from an anti-tank mine with an anti-handling device. (The exact wording will be provided later - the statement was considered necessary because the use of the word 'primarily' could exclude new 'hybrid' mines from the definition of an APL)

Article 5(2) (b)
"It is understood that Article 5(2) (b) does not preclude agreement among the states concerned, in connection with peace treaties or similar arrangements, to allocate responsibilities under this paragraph in another manner which nevertheless respects the essential spirit and purpose of the Article" (statement by Australia on behalf of several countries, considered necessary since in terms of the scope of the Protocol, Article 5 is valid only during periods of armed conflict)

With the South African Cabinet decision on 19 February 1997 to prohibit the use, development, production and stockpiling of anti-personnel landmines with immediate effect, as well as to destroy the country's existing stockpile, South Africa has moved beyond the objective of the CCW's amended Protocol II. However, as Protocol II deals not only with
anti-personnel landmines but also with anti-tank mines, booby-traps and other devices it is important to adhere to the provisions of the amended Protocol II.

The new Protocol IV

Sweden submitted a proposal at the October 1995 Review Conference for a protocol on blinding laser weapons. Light Amplification by Stimulated Emission of Radiation (LASER) was first demonstrated as practicably feasible in 1958. Since then laser technology has made dramatic advances and laser devices are now used in a wide variety of civilian and mi1itary applications.

Military lasers can be loosely grouped into three categories: targeting and range-finding lasers, antimateriel lasers and anti-personnel lasers. It is the third category of military lasers that are solely designed to cause blindness to the opponent. This should be distinguished from incidental or accidental blinding effects of other laser systems

The anti-personnel lasers can be divided into two sub-categories:

(a) "Dazzle" or flash-blinding lasers are used to cause temporary blindness in an opponent. These devices are not targeted at individual military personnel in the field, but rather at the operators of aircraft or tanks.
(b) Systems designed with the intention to cause permanent blindness. These type of weapons are intended to be used against infantry and comparable categories of personnel.

The new Protocol IV on Blinding Laser Weapons was adopted at the CCW Review Conference in Vienna on 13 October 1995 This new Protocol IV places a prohibition on the use of such blinding laser weapons which is designed to cause blindness. However, blinding as an incidental effect of the legitimate use of laser beams (laser range finders) on the battlefield is excluded.