Protection of Civilians during Peacekeeping Operations: ACP/EU Draft; Employment of SANDF under Section 201 of Constitution: Legal Opinion

Defence

23 October 2008
Chairperson: Dr E Schoeman (ANC)
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Meeting Summary

The Committee received a briefing from Mr Peter Daniels, the Committee Researcher, on peacekeeping operations, the different aspects of these, and the challenges, which he had prepared as background to the request that this Committee approved the ACP / EU Joint Parliamentary Assembly Draft on the Protection of Citizens during peacekeeping operations. He highlighted that South Africa had in the recent past been requested to send peacekeeping participants to a number of regions. He outlined the rules for engagement in situations of war, and the provisions on international humanitarian law. He described  the role of the United Nations, its Security Council and the peace support operations, an also described the types of interventions and the roles of the regional organisations recognised by the UN Charter.

The South African Parliament played a role in securing approval for peacekeeping, authorising finances and ensuring that any interventions matched Constitutional imperatives. However, in practice he noted a challenge in recovering the costs, which meant that the Department’s own budget was being compromised. He described the interventions that were undertaken in 2006/07 and 2007/08 financial years. It was noted that civilian protection was of increasing importance as military commanders were not only failing to recognise the rights of citizens during war but were also too concerned with demobilization and disarming after war to pay much attention to restitution. In future there would be emphasis on reintegration of former combatants. The practical implications of Responsibility To Protect were outlined. The changes of emphasis had given rise to several challenges, including the budgetary constraints, challenges around political will and commitment, uneven performance and unrepresentative membership on the UN Security Council. For the regional organisations, there were challenges around affordability of intervention, capacity, unclear structural and political relationships, inadequate support and logistics and lack of integrated planning. There was a need to address these to try to ensure that peacekeeping did protect those for whom it was intended.

Members adopted the Resolution on the draft, noting that it would be forwarded to the UN.

Members then discussed two legal opinions that had been obtained from the Parliamentary Legal Advisers around the application of Section 201 of the Constitution. Concerns had been raised that Parliament was often effectively being asked to rubber stamp decisions taken by the Executive or Administrative arms of Government, often under severe time constraints, and the question was raised whether Parliament was able to challenge the President’s decision for employment of Defence Force personnel, particularly where this was impacting upon budgets over which the Committees were to exercise oversight.  There were some conflicting views across the opinions as to whether the White Paper, Defence Act and Constitution must be read together, or as isolated documents. There was also a difficulty in understanding what “inform Parliament” meant and whether it was intended to imply a consultative process. Members finally resolved that the matter should be referred to the Rules Committee of Parliament, as it seemed that this was a matter finally dependent upon the Rules, and that the situation in times of both war and peace needed to be considered.

Meeting report

ACP– EU Joint Parliamentary Assembly Draft on Protection of Citizens during Peacekeeping Operations
The Chairperson congratulated and wished Mr M Booi (ANC) and Mr S Ntuli (ANC) well in their new positions.

The Chairperson noted that this meeting was to consider the ACP-EU Joint Parliamentary Assembly Draft on the protection of civilians during Peacekeeping operations by the UN and the Regional organisations. He commended Mr Peter Daniels, Committee Researcher, on the quality of his presentation, which had been circulated to all Members.

Mr Peter Daniels, Committee Researcher, briefed the Committee on his document, but noted that he would not be dealing in detail with some of the matters raised in it. He reminded the Members that the well documented and publicised atrocities in Rwanda, Sierra Leone and the Sudan quite recently had caused concern in South Africa, and that South Africa had been called upon to send participants to the peace-keeping forces. Despite the United Nations (UN) Protocols, civilians had been killed. The lack of interference by the UN had led to the gap being filled by civilian agencies and NGOs. States were unwilling to concede their sovereignty to international action or bodies, and where there was intransigence the UN had proved ineffective. He reminded Members that there were in actual fact rules for engagement in wartime, the most well known being the Geneva Convention and the International Committee of the Red Cross. Although these were referred to often and were in the public awareness, the actual rules were not well known. The law of armed conflict, also commonly referred to as International Humanitarian Law (IHL), was applicable to both combatants and non combatants, and was intended to prevent unnecessary suffering.

In addition the UN was mandated by its Charter to intervene in war conditions, and in this respect it operated through the agency of the UN Security Council, which, in terms of Article 43, was to made forces available, if called upon for a contribution. However, the UN Security Council would sometimes act more speedily than at other times; for instance it was quick to intervene in Bosnia, but slow to intervene in Rwanda. The costs of a UN intervention were paid for by the Members of the UN on an agreed scale or formula.

There were several different types of peace support operations (PSO), including those in terms of the provisions of Chapter VI for peaceful settlement of disputes, Chapter VII for collective security measures (sanctions and military operations) and a combination of Chapter VI and VII, being an intervention short of full combat and peace enforcement. The traditional interventions in war situations were the operation of a ceasefire, outside monitors, light armed forces between the warring parties, a buffer zone and a settlement. The contemporary approach was becoming complex and such interventions were deployed inter and intra-State and were dependent upon close co-operation between the parties. There were thus PSOs in every phase from prevention to post war conciliation, and the emphasis was on the maintenance of law and order with humanitarianism and direct intervention in accordance with Chapter VII.

He then went into more detail about the types of intervention. The traditional Peacekeeping (PK) operations were done with the consent of the parties and could take the form of a preventative PK before an attack took place, supervising a supervising a ceasefire between irregular forces, assistance with the maintenance of Law and Order, protecting humanitarian and development initiatives and pure peace enforcement missions.

Mr Daniels noted that there were various Regional Organisations recognised by the UN Charter, both regional and sub regional. These were viewed as a first level of intervention mechanism to any regional conflict, for the UN lacked the capacity, resources and expertise to address each and every problem that might arise. The regional organisations could conduct PSO in partnership with the UN. Regional Organisations included the Organisation for Security and Co-operation in Europe (OSCE), the North Atlantic Treaty Organisation (NATO),  the Organisation of American States (OAS),  and the Caribbean Community (CARICOM). Continental Organisations included the African Union (AU),  the Economic Community of West African States (ECOWAS). the Southern African Development Community (SADC), The Arab Maghreb Union (AMU), The Inter- Governmental Authority of Development (IGAD) and the Economic Community of Central African States (ECCEAS). The AU was empowered to intervene in grave circumstances such as commission of war crimes, genocide and crimes against humanity. ECOWAS was best known for its intervention in Liberia and Sierra Leone. SADC had a specific protocol on politics, defence, and security co-operation in order to strive for a climate of peace, security and stability in the region, and to recognise regional arrangements, but its Charter forbade the use of force without the approval of the UNSC.

Mr Daniels noted that South Africa's peacekeeping mechanisms included the South African Parliament's role in securing approval for participation on PSOs, the authorisation of the finances, the fact that any interference was to be within South African Constitutional imperatives. South Africa was to be reimbursed for troop contingents, equipment and other personnel to UN Missions. Any deployment of South Africa personnel was to be within the provisions of the interim Constitution, the Constitution and the Defence Act. The President was to inform Parliament of any involvement. There was a 1999 White Paper framework on South Africa participation in Peace Missions.

Mr Daniels noted that South Africa's participation in 2006/2007 was listed in the report by the Department of Defence (DOD). This covered 15 PSOs. As a result of these, there had been placement of 1 215 operatives in the Democratic Republic of Congo (DRC), 1 319 in Burundi, 371 in the Comoros,  334 in the Sudan,  1 110 in OPS Curriculum in Burundi, and others in Mozambique, the West Indies, Nepal, Uganda, Zambia and the Central African Republic. In 2007/2008 there were about 2 500 personnel, including reserve forces, deployed in six PSOs and six general military assistance operations, there had been involvement in a hybrid UN/AU mission in Sudan, military observers were in Uganda, there had been a contribution to post conflict reconstruction in the DRC,  assistance with training and post conflict reconstruction in the Central African Republic, and humanitarian assistance to Mozambique during the floods. The emphasis was on ascertaining the views of the local communities, who should simultaneously be made aware of the mandate and the roles of the PSO.

PSOs must operate in terms of agreements such as Status of Forces Agreement (SOFA), and the UN Code of Conduct, and the Peacekeepers’ Handbook. The discipline of the peacekeepers was important, especially in generating and maintaining trust. Any misconduct and poor discipline would damage the image of South Africa, the PSO and the force. The South African troops were to be made aware of the fact that intervention by an outsider in an internal conflict was always problematic, that such intervention needed to be sanctioned and approved by at least one of the parties and the UN, that the goal of protecting the civilians was always elusive, and that the intervention in the DRC was a prime example of these factors.
 
The Kofi Anan report of 1999 noted a disturbing tendency in modern conflicts to the effect that 90% of the casualties were civilian, and so it was accepted that it was necessary to have a civilian protection focus. Military commanders were concerned with demobilising and disarming so that little attention was given to reintegration, and the emphasis in future was to be on reintegration of the former combatants into civil society. This required a more holistic, rather than a quick-fix approach.

Responsibility To Protect (RTP) was now viewed as a core responsibility. There were views that sovereignty entailed responsibility. RTP described the duty of governments to protect and terminate acts of violence against their own citizens. In addition the international community had a responsibility to prevent genocide, massive human rights abuses and other humanitarian crises. It was now accepted that if States failed to protect citizens the international community shared a collective responsibility to protect such vulnerable persons. Measures taken should be peaceful, but if necessary also coercive or even forceful. In addition, no State could now hide behind the doctrine of sovereignty where its own citizens were at risk, neither  could such State turn a blind eye when such inhumanity existed beyond its own borders. The doctrine of RTP embraced three responsibilities: the responsibility to prevent by addressing the causes, the responsibility to react and respond to serious situations, which may include military intervention, the responsibility to rebuild, providing full assistance with  recovery and reconstruction after military intervention. RTP was not only about military or coercive means but now extended to the political sphere.

Arising from this change of emphasis were several challenges. The UN Charter prohibited the use of force without UNSC approval. The right of certain nations to veto action was inimical to the interests of humanitarianism. There were concomitant administrative and budgetary constraints, the question of political will and commitment, uneven performance and unrepresentative membership of the Security Council.

For the Regional Organisations, challenges included the fact that non response often arose from a lack of capacity, so that despite the pledges to protect civilians, Regional Organisations were often unable or unwilling to either uphold or implement such guarantees. For instance, in West Africa, perpetrators were often rewarded with access to political power. The responsibility to protect civilians should be respected by both State and non-State actors. Further challenges included budgetary constraints and a lack of administrative capacity, political diversity embracing systems and ideologies, unclear structural and political relationships exacerbated by weak command and control, inadequate support and logistics capacities, limited troop inter-operability and lack of integrated mission planning, poor intelligence gathering and in-House information, aggravated by a weak communication capacity.

For those attempting peacekeeping, there were also challenges in identifying legitimate civilians from those who supported rebel groups. There was  little precedent on how to accomplish “civilian protection”, unclear mandates, a lack of contributions, insufficient capacity to act and a lack of operational guidance and military preparation.

All these challenges made protection of civilians during PSOs into a complex issue. The reality was that many PSOs had failed thousands of civilians. The end goal of PSOs was protection of civilians and the creation of an environment that respected basic and recognised rights and freedoms. The capacity, the political will and commitment all needed to be confronted.

Discussion
The Chairperson congratulated the Researcher on a logical report and he urged the Members to retain the document for future reference

The Chairperson further stated that this brief had been encapsulated in a Resolution, which was not widely available as yet.

Members did not have any questions or comments arising from the presentation.

A Member asked what the purpose was of adopting the Resolution: whether this was on behalf of the Committee, or South Africa.

The Chairperson and Researcher confirmed that the adoption of the Resolution would be conveyed to the European Union.

A Member pointed out that peace keeping was a complex activity, and it was one matter for the politicians to pass a resolution to participate in a peace keeping intervention, but an entirely different matter for the commanders and soldiers on the ground.

The Chairperson indicated that giving a copy of the documents to the Department of Defence would facilitate matters.

Section 201 of Constitution: Employment of South African National Defence Force (SANDF) Members
The Chairperson then outlined the Constitutional and Parliamentary procedures regarding the employment of a South African peace keeping mission, and added that certain administrative difficulties relating to the stipulated time frames had arisen and were giving rise to concern. There were further concerns that Parliament, rather than being properly able to exercise its oversight obligations and functions as required by the Constitution, was rather being expected to “rubber stamp” decisions taken by the Executive, which was assuming unfettered powers. There must be observance of the Separation of Powers doctrine. Two legal opinions had been requested to address these concerns.

One of the Parliamentary legal advisers was present, but the other legal adviser was unfortunately not. One had been of the view that the 1999 White Paper was not relevant to the question at issue, although the other Legal Adviser, with whom the Chairperson tended to agree, thought that the Constitution, The Defence Act, and the White Paper of 1999 had to be read as a whole, not in isolation from each other. He added that participation in peace keeping missions had cost implications for South Africa, as although the country in which the intervention had taken place was supposed to reimburse South Africa, there were long delays before this reimbursement might be received, if it was paid at all, and therefore effectively the Department of Defence (DOD) was being called upon to pay the costs, which impacted upon that Department’s ability to maintain a budget approved by Parliament, and consequently upon Parliament’s  competence to oversee the Department of Defence, if the Executive, the Department of Foreign Affairs and possibly the Department of Intelligence were making unforeseen calls upon DOD’s budget.

A Parliamentary Legal Adviser, then addressed the Committee, and emphasised that the Constitution, the supreme law, required a separation of powers.

A member conceded that this was so. If a state of war had been declared the President was the Commander in Chief. However, in times of peace or in peace keeping operations the President was a more nominal Commander-in-Chief, and so Parliament had oversight functions requiring it also to play its role.

Ms A van Wyk (ANC) explained that this very question now before this Committee was also of concern to the other Committees on which she sat, being the Portfolio Committees on Safety and Security, and on Intelligence.

A Member added that in some peace keeping interventions members of the South African Police Service (SAPS) had been deployed and the money for these associated costs had come from the Visible Policing budget, thus directly and negatively impacting upon crime prevention in South Africa.

The Chairperson then encapsulated the problem as being whether Parliament had the right to question the President.

A member interposed whether Parliament had rights in the event of an attack upon the country.

Ms van Wyk suggested that regard should be had to the Rules of Parliament to see where Parliament, and this Committee, stood from a legal and Constitutional point of view.

Mr S Ntuli (ANC) felt that the White Paper, read together with section 18(4) of the Defence Act, might provide an answer to the present conundrum. He agreed with Ms van Wyk that Parliament was required to have oversight over the Executive and Administrative arms of Government. He believed the answer might lie in the Rules of Parliament, and these might need to be revised or strengthened.

The Chairperson then explained that it was not the intention of himself or the Committee to be confrontational against the President. However, there were real concerns that Parliament was being required to rubber stamp decisions and actions by the Executive, and accordingly was not fully performing its constitutionally designated role and function.

A Member commented that he thought the nub of the question lay in what “informing Parliament” meant.  This was especially important when there were cost implications. He questioned whether this meant being told, or having the right to participate in the decision. South Africa was a young democracy and so it might be healthy to examine how other democracies had handled this question. He commented that although some people regarded the USA as a model democracy, Presidents Kennedy and Johnson had drawn or even duped that country into a war in Vietnam while they were keeping Congress “informed” and he was concerned lest there be danger of a similar situation arising in South Africa.

Mr L Diale (ANC) said that this Committee and Parliament had on occasion written to the Speaker, yet the matters were not responded to in time, so that again Parliament was unable to properly exercise its oversight function.

Mr Diale added that the NCOP had requested and obtained a legal opinion on the efficacy of the existing procedure.

The Parliamentary Legal Adviser said that the White Paper of 1999 was of questionable importance in the Constitutional sphere.

Ms van Wyk suggested that the Constitution and the Defence Act should be examined again. She also thought that the Rules of Parliament must be reviewed and if necessary rewritten to overcome this contentious issue of deployment of troops.

Another Member commented that both the “at war” and “at peace” scenarios must be considered. 

The Chairperson summarised the situation as requiring further examination. Clearly both scenarios were of importance. He said that the difficulties arising from the Constitution, the Defence Act and the White Paper should be referred to the Parliamentary Rules Committee for consideration of how best to address the challenge.

The meeting was adjourned.

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