Prohibition or Restriction of Certain Conventional Weapons Bill [B7-2007]: briefing

DEFENCE PORTFOLIO COMMITTEE
22 May 2007
PROHIBITION OR RESTRICTION OF CERTAIN CONVENTIONAL WEAPONS BILL: BRIEFING

Chairperson: Ms T Tobias

Documents handed out:
Prohibition or Restriction of Certain Conventional Weapons Bill briefing
Prohibition or Restriction of Certain Conventional Weapons Bill [B7-2007] 

SUMMARY
The Committee was briefed on the Prohibition or Restriction of Certain Conventional Weapons Bill which deals with the prohibition or restriction of usage of certain types of weapons. South Africa, as a signatory to the Convention on Prohibition or Restrictions on the Use of Certain Conventional Weapons, was required to give effect to the Convention by passing enabling legislation. The Committee was given a breakdown of the contents of each chapter of the Bill along with a brief explanation. Members were very concerned about the impact those restrictions would have on the ability of South African National Defence Force members to protect themselves in a conflict. A great deal of discussion ensued over the merits of the Bill on this matter. 

MINUTES
The Chair noted that the Bill had been tabled in Parliament on the 12 April 2007 and it was intended that the Bill be completed by the end of June 2007. She pointed out that hearings on the Bill would commence within a week. 

The Committee was briefed by Adv Siviwe Njikela (Director: Legal Services, Department of Defence) and Adv S Dladla (Director: Material Resources and Policy, DoD). SA had acceded to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons in 1995. In so doing SA had made a commitment to enact the principles of the Convention into law. Article 14 of Part 2 of the Convention required signatories to enact legislation. The enabling legislation for SA was thus the Bill.

The Convention spoke to four protocols which needed to be embodied in the Bill. The first was the prohibition on the use of non-detectable fragments. The second covered the restriction on the use of mines, booby traps etc. The third protocol was the restriction on the use of incendiary weapons. The fourth and final protocol prohibited the use of blind laser weapons.

A brief outline was provided on each chapter of the Bill:
• Chapter One covered the objects of the Bill and more importantly the extraterritorial application of the Bill and its jurisdiction. The Bill therefore seeks to address transgressions by South Africans acting outside the borders of SA.
• Chapter 2 covered the restrictions and prohibitions as set out by the protocols of the Convention. The Department reiterated its earlier explanation on each protocol. Non-compliance with the restrictions and prohibitions would be punishable by fine, imprisonment or in certain instances both. Chapter 2 also made provision for the surrender of prohibited weapons and forfeiture to the state. Persons affected would have to surrender such weapons within six months of the Bill coming into effect.
• Chapter 3 made provision for the Minister’s reporting to the UN on compliance with the Convention and the powers bestowed upon him to gather information in this regard. The Chair commented that one could be thought to be compliant without being compliant. The point was taken by the Department. The intention was nevertheless for SA to be compliant.
• Chapter 4 contained general provisions relating to guidelines for training of South African National Defence Force (SAND) members in line with the Convention and Bill. It also covered the Ministerial regulations which were required for the implementation of the Bill and lastly bestowing powers of delegation upon the Minister.

Discussion
The Chair said that only questions of clarification would be entertained.

Mr M Booi (ANC) asked whether SA security persons working abroad in Iraq fell within the ambit of the Bill. He commented that he felt that many of the UN Conventions 'europeanised' and that it did not take into consideration specific conditions in Africa. He asked if rebels in Africa could be arrested for contravening the Convention.

Adv Njikela said that a SA citizen serving under foreign armed forces would still fall under the jurisdiction of the Bill. If a foreigner committed an act of aggression in SA, the Department could also take action.

Mr Botha (DA) asked how the Bill differed from international conventions. He said that if the SANDF was also required to surrender anti-personnel mines, what prevented rebels from using such against SANDF members, deployed on missions in Africa. He asked whether it was fair to restrict the SANDF.

Mr S Ntuli (ANC) stated that it would sometimes be necessary for the SANDF to use anti-personnel mines under certain circumstances. He was concerned about how the Bill would affect SA’s military capability.

Dr G Koornhof (ANC) asked if the Bill was controversial in terms of SANDF obligations or even legislatively controversial. He also asked how the Bill was to affect the local arms manufacturing industry in SA. What were the financial implications of the Bill? Dr Koornhof was also concerned about the practicalities in a combat situation where SANDF members would no longer be allowed to use certain weapons. Would not the safety of SANDF members be compromised?

Ms Daniels (ANC) wondered about the morale of SANDF members and how the Bill would impact upon this.

Mr O Monareng (ANC) added that rebels did not follow prescribed rules of engagement and that SANDF members would be placed in precarious situations in peace-keeping missions in Africa, without the availability of certain weapons at their disposal.

Mr V Ndlovu (IFP) referred to the provision which gave the Minister the power to gather information and asked against which persons the Minister may obtain a court order in order to obtain information. He also referred to the provision on the surrender of prohibited weapons and asked whether SAPS or the military police should be notified about possession of such weapons.

The Department responded that “police official” in the Bill referred to both SAPS and the military police.

Mr Monareng asked whether financial compensation would be paid in return for the surrendering of prohibited weapons.

In response to Mr Booi asking about the regulations, the Department responded that the powers of the Minister, in terms of regulations, would only be what Parliament intended it to be. The Minister could not act beyond these powers.

The Chair emphasised that the Bill aimed to embody the principles that SA had acceded to in the Convention. She agreed that anti–personnel weapons were extremely dangerous but she also felt that members of the SANDF should not be short-changed in a combat situation. SANDF members should not discriminated against in terms of accessibility to certain types of weapons where such need had arisen.

The Department responded that the Bill was long overdue and that its intention was not to undermine the safety of SANDF members. Counter measures such as anti mine equipment was available to SANDF members for their protection. The safety of SANDF members was a priority to the Department. The weapons to be used in combat should be commensurate with the force needed. The Bill therefore prohibits the use of anti-personnel mines, for example. The idea was to limit the use of excessive force.

The Chair reiterated earlier concerns over the safety of SANDF members if prohibitions on certain weapons were allowed. She asked what guarantees were there for the safety of SANDF members, given that there was no control over what type of weapons the enemy might use.

Mr Booi stated that the reality was that SA was engaged in a great deal of peace-keeping initiatives in Africa which often times were volatile. It was difficult for SA to be expected to adhere to conventions prohibiting the use of certain types of weapons. He felt there were a lot of gaps that needed to be filled. 

Mr Monareng emphasised that the Committee needed to look closely at the implications of restrictions on certain types of weapons. He was concerned about the reduction in the SANDF’s capacity.

The Department appreciated the committee’s concerns over SANDF members. The Committee was assured that SANDF members would never be over-exposed to danger.

The Chair reminded everyone present about the devastating types of weapons that were used on attacks on the peoples of Palestine. Shrapnel accounted for most of the injuries. The UN had been lukewarm in its response to these atrocities. She asked what the Convention says about these issues. She realised that SA had acceded to the Convention and that it had taken ten years for the Bill to emerge. The question that arose was whether the process had been watertight and what was needed to tighten up the Bill.

The Department conceded that the issues were by no means easy. The Convention and the Bill relate to international humanitarian law and the principles that underlie it. SA had acceded to the Convention and should therefore stick by its commitment to it and not stoop to the level of those who continue to use prohibited types of weapons. An example needed to be set and over the passage of time, everyone would get the message.

Mr Botha said that he got the impression that there was haste in the processing of the Bill by Parliament. He asked why.

The Chair reacted that there would be no haste in processing the Bill and that proper engagement and consultation would take place.

Mr Ntuli asked what assurances were there that SANDF capability would be there when it was needed.

Dr Koornhof said that the Committee understood the need for the Bill but that at the same time SANDF members should not be unduly put at risk. There should also be no loopholes in the Bill. He emphasised that the Committee needed to look at the practical implications of the Bill. Conflict situations were volatile and unpredictable and issues needed to be looked at properly. He urged the Committee to debate the Bill properly and to consult as widely as possible. He felt it was not the duty of the committee to legislate "hope" but rather to look after the well-being of SANDF members.

Mr L Diale (ANC) warned that the Committee should be careful not to restrict SANDF members. The Committee must seek to protect SANDF members at all costs, given that warfare could be unforeseen. He pointed out that many small conflicts were started by the superpowers such as USA. The US blatantly violated international conventions, that is, the unlawful invasions of Iraq and Afghanistan. The USA chose not to follow international protocols whenever it was in its own interest. He urged the Committee to be careful in legislating the Bill. He cautioned that the world was a dangerous place, especially where superpowers often did as they pleased. What was to be done about the protocol violations of the USA?  

Mr Booi stated that the Committee needed to be careful in dealing with the Bill as Parliament was accountable to the public. He added that it was in this context that concerns had been raised.

An ANC member asked how persons who surrendered weapons would be protected against prosecutions. He stated that perhaps it depended on the manner in which the weapons had been acquired in the first place.

Mr Monareng said that the primary concern should be not to place SANDF members at risk. SA should also not be restricted militarily and be at the mercy of superpowers. He wanted assurances that the Bill would not compromise SA. He asked what the delay was with the promulgation of the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Bill.

The Chair said that the Bill was being delayed by technical issues in the translation of the Bill.

Mr Ndlovu stated that the Committee was faced with two issues. The first being adherence to the Convention and the second being the passing of the Bill. The issue was whether the Bill was needed or not. The Committee needed to be practical in dealing with the issue.

The Department said that the concerns of members had been noted and that it would be addressed the next time they met.

The meeting was adjourned.