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DEFENCE PORTFOLIO COMMITTEE
22 August 2007
PROHIBITION OR RESTRICTION OF CERTAIN CONVENTIONAL WEAPONS AMENDMENT BILL: DELIBERATIONS
Chairperson: Ms T Tobias (ANC)
Documents handed out:
Prohibition or Restriction of Certain Conventional Weapons Bill [B7-2007]
The Committee began to deliberate the Prohibition or Restriction of Certain Conventional Weapons Bill, clause by clause, completing the preamble, definitions and the first two chapters in this session. It was noted that South Africa was the first country to legislate in terms of the Convention. Members had some concerns about adherence to the Convention and concluded that South Africa was enacting this legislation to be part of the compliance mechanisms. Some Members would like to understand the motivations behind declarations made by other countries. Under the definitions, it was decided to amend the definition of blinding laser weapon, but no changes were made to component part (at this stage), military objectives, and export. It was agreed that the definitions of explosive ordnance and unexploded ordnance be deleted. The definition of import was to be changed to ensure consistency. Technical amendments were to be made to the definition of procure. The words ‘or restricted weapons’ would be deleted from the definition of transfer. Members then agreed to delete the whole of subclause 3(1)(d) as the contents were adequately contained elsewhere. Clause 6 was to be amended to ensure consistency between headings and body text. The words ‘unnecessary suffering’ were explained in context. The word ‘clearly’ was to be removed from clause 6(2)(a)(viii). The words in relation to mines were explained. Clause 8 (2) was to be deleted. The penalties under Clause 9 were raised, but would be discussed at a later meeting.
The Committee Secretary highlighted the issues that were dealt with in the previous meeting, and the Committee then proceeded to discuss the Bill, clause by clause.
Mr V Ndlovu (ANC) wanted to know what was meant by the word ‘Use of Certain Conventional Weapons which May Be Deemed..” in the sixth bullet point of the Preamble.
Ms N Mnyikiso, Senior State Law Advisor, replied that the words reflected the full name of the Convention upon which the Bill was based, and this could not be changed.
Mr M Vassen, Legal Advisor: Parliament, also responded by saying that the Bill dealt with specific weapons that were clearly outlined.
Mr R Shah (DA) thought that the preamble had to take into account any future developments in the field of technology.
The Chairperson had concerns whether the current wording, under bullet point three, adequately addressed the issues. It was currently worded that there was a principle of international law that the right of the parties to an armed conflict to choose methods or means of warfare was not unlimited.
Mr Ndlovu asked what would happen in a case of non-compliance.
The Chairperson added that South Africa was the first country to legislate in terms of the Convention. She also had some concerns on adherence to the Protocol. Other countries had made declarations, and these had the effect of loosening the binding effect of the Convention. South Africa had decided to accede and conform with the need to enact domestic legislation.
Mr Ndlovu commented that there was a problem with the fact that South Africa would be adhering to the legislation while other countries had not legislated, and asked what would happen to South Africans in those other countries who might be exposed to the restricted and prohibited weapons.
The Chairperson responded that a short answer would need to be found on this; there was no further time to discuss the matter at length.
Mr M Vassen, responded that in international law, the more countries that signed the agreement, the more binding it became in effect.
Mr Shah commented that the problem with the Convention would be one of compliance. Article 14 included legislative and other measures, but there was no certainty as to what would happen in the international arena.
The Chairperson replied that the point here was that it was the United Nations that had to make clear recommendations.
Mr Shah asked what were the motives behind the declarations made by other countries. This Committee might want to make recommendations to the government to seriously consider making declarations of their own.
Dr G Koornhof (ANC) added that South Africa could not attempt to legislate for countries that did not sign the convention. There were protocols that required regular review conferences, and other countries would be encouraged to sign. That was not the issue for South Africa. It was intended to be part of the compliance mechanisms, and this was the best it could do.
Definitions: Blinding laser weapon
The Chairperson indicated that the responses to the submissions indicated that it was necessary to insert the word ‘laser’ before the word ‘weapons’ in the definition.
Mr Vassen relied that it might be a technical issue. The effect of this prohibited weapon was that it would cause permanent blindness if used on the naked eye. There could be other weapons that could hurt the eyes.
Mr Shah responded by saying that these would not fall under ‘blinding laser weapon’, and would then require a separate definition.
The Chairperson reminded Members that this Bill was intended to legislate only for the specific types of weapons contemplated and that it should not be attempting to go into other weapons..
Definition: Civilian objects
Mr Shah commented that the United States of America (USA) had made a declaration that added an exception to that specific definition.
The Chairperson responded that at no point could civilians be combatants. It must also be noted that the Bill was to discuss weapons and therefore there was no discrimination.
Definition: Component Part
The Chairperson commented that the Department had suggested that there should be no changes to this definition.
Dr Koornhof mentioned the concern that the Minister should exempt from the Bill some institutions that were engaged in research and development.
Mr Shah mentioned the issue of the dual-purpose component.
Dr Koornhof thought that this could be included under general provisions, in the exemptions clause.
The Chairperson commented that it was known that the Minister could make recommendations on who could be exempted or not.
Mr Shah suggested that perhaps the definition be left as is and that further clarity could be sought.
Mr Vassen agreed that he would look into how best to deal with the provisions.
Definition: Explosive Ordnance
The Chairperson said that it was agreed previously that this definition should be deleted because of the fact that Protocol V had not yet been ratified.
Mr Shah recommended that the definition of export be taken from the National Conventional Arms Control Committee Act definition of export, and inserted in this Bill
The Chairperson thought that the definition in this context seemed to suffice.
Mr Ndlovu mentioned that the Bill was referring to specific weapons.
The Chairperson replied that broadening of the definition would mean that the Bill would be extended.
Mr S Ntuli (ANC) agreed with the Chairperson.
Ms Mnyikiso noticed an inconsistency regarding the mention of restricted weapons in this definition, as it referred to restricted weapons as well as prohibited weapons.
The Chairperson replied that the drafters should then delete the word ‘restricted’ from the definition.
Ms Mnyikiso remarked that the reason this definition was put in the Bill was because it deviated from the normal dictionary meaning.
Definition: Military Objective
Mr Shah found a problem with the definition as it made exception for certain circumstances.
Dr Koornhof mentioned that Article 1 of the Convention had clearly defined military objectives.
Major General B S Mmono, Chief of Legal Services, DOD, replied that the definition referred to a military target, but that the exception was intended to cater for military targets in certain civilian areas, where it was necessary for safety to limit weapons.
Mr Siviwe Njikela, Director: Legal Services, Department of Defence, mentioned that he had now realised that perhaps this definition had in fact gone beyond what was contained in the Convention.
The Chairperson suggested that the word ‘means’ should be deleted and replaced with the word ‘includes’.
Mr Shah suggested that discovery be deleted from the definition.
Dr Koornhof suggested that the phrase ‘or restricted weapons’ be deleted completely from the definition.
Definition: Unexploded ordnances
Mr Ntuli asked for clarity why it had been said that this definition would be removed because Protocol V had not yet been ratified. He asked if the Bill would still apply to these situations.
The Chairperson responded that the Protocol V still had to be ratified, and that in fact no reference had been made to unexploded ordnances anywhere in the main body text of the Bill in any event.
Clause 3 : Extraterritorial application of Act, and jurisdiction
The Chairperson remarked that there was a suggestion to delete the whole of paragraph 3(1)(d) and that this had been agreed to at the previous meeting as the contents of this subparagraph were already adequately covered elsewhere.
The Chairperson suggested that the heading to clause 6 of the Bill should contain the word “or” before “other device” as the heading was not consistent with what appeared in the first line of the clause.
Mr Njikela did not think it would change anything substantial if ‘or’ instead of ‘and’ were to be used.
Ms Mnyikiso agreed that that there should be consistency throughout the document and whichever word was used should match in heading and text.
Mr Shah raised a concern in relation to the wording concerning, on the one hand, prohibited weapons, and on the other restricted weapons.
Mr Njikela remarked that confusion had arisen in the distinction between prohibited and restricted weapons. Certain words were used in relation to either one or the other of these weapons and there would not therefore be total consistency of use.
Mr M Moatshe (ANC) referred to the wording in clause 6(1)(a) that used the word ‘unnecessary suffering’ and asked if there was such a thing as necessary suffering.
Mr Vassen explained the use in the context. Some of these weapons could not kill but would maim, and this could cause more suffering.
Mr Mmono said that according to the rules of engagement, the point was to render the person contributing to the engagement ineffective, but anything further that would increase his suffering would be unnecessary.
Mr Shah noted that subparagraph 6(c)(i) the phrase ‘or in the close vicinity of’, could interpreted in a number of ways.
The Chairperson commented that this subclause must be read within the context of subparagraph 6(1)(a).
Mr Vassen also added that it needed to be seen in conjunction with the definition of military objective.
The Chairperson asked what was the problem had been with the original version, and why it had been changed.
Dr Koornhof asked for clarification if Clause 6(1)(c) was consistent with the Convention and whether it had to be.
Mr Mmono stated that the legal drafters had agreed on the wording, but were putting it to the Committee. The phrase ‘directed against’ did not seem to pose problems, but he suggested that the phrase ‘or in the close vicinity of’ should be deleted..
Mr Shah objected to the word ‘against’ saying that it was very broad, and suggested the phrase ‘directed at’.
Mr Vassen replied that subclause 6(2) protected civilians.
The Chairperson mentioned that the Committee had already had some discussion on the word ‘clearly’ being used in the clause 6(2)(a)(viii) and that the drafters had agreed that this word was to be removed.
Mr Shah was worried about the specifics that were given when it was detailed what type of mines may be used, and how it would affect the manufacturing of South African mines.
Mr Vassen stated that it should be placed in context. These protective measures must be seen not so much in terms of their cost factor, but in terms of the fact that the self-destruction or self-neutralisation mechanisms would both address the cost of removing mines, the difficulty in locating all mines, and the fact that adding such features was more humanitarian and protected people and the environment.
Mr Shah remarked that these were restricted weapons and that the submission did not make sense.
The Chairperson understood the statement to mean that this would apply only when the environment was used to conceal military objectives.
The Chairperson recommended that subclause 8(2) be deleted, as there had been some inconsistencies highlighted in respect of laser systems.
Ms Mnyikiso noted that there had been a submission that the penalties provided for were too light.
Mr Shah asked if it would be advisable to speak to the Justice Cluster on the issue.
Mr Ntuli thought that the penalties were appropriate, considering the fact that not all countries had ratified the Convention.
The Chairperson wanted to flag this issue and continue discussion at the next meeting.
Ms Mnyikiso reminded the Committee that 15 years was the maximum, and that the perpetrator could be sentenced to any number of years up to 15 years.
The meeting was adjourned.
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