PARLIAMENT OF
ISSUES RELATING TO
THE CERTAIN CONVENTIONAL WEAPONS BILL
1. Introduction
During previous discussions on the Bill,
some Members of the Portfolio Committee on Defence have indicated their concern
regarding the impact of the Bill on the South African National Defence Force
(SANDF). In this regard it should be noted that the Bill does not place new
restrictions on
The following issues relating to the Bill, as it currently stands, should be taken into consideration.
2.
Preamble
The Preamble
should indicate that the nature of the Convention is such that additional
Protocols may be added in future to provide for technological advances in
weapons development.
3.
Definitions
·
Anti-personnel
mines
“Anti-personnel
mines” is not defined in the Bill. It is recommended that it be defined as follows:
“anti-personnel mines” means an anti-personnel mine as defined in the Schedule
to the Anti-Personnel Mines Prohibition Act, Act No 36 of 2003.
·
Blinding
Laser Weapon
The definition
of “blinding laser weapon” does not have the word laser in it. It is recommended that
the definition be changed to read as follows: “blinding laser weapon” means a laser
weapon specifically designed,
as its sole combat function or as one of its combat functions, to cause
permanent blindness to the naked eye.
·
Component
Part
Section 5(b)
prohibits possession, procuring, manufacturing, stockpiling, transfer, dealing
in, importing or exporting a component part of a weapon contemplated in
paragraph (a). The definition of “component part” means any identifiable
component designed or adapted to form an essential and integral part of any
weapon prohibited by the Act. It is a concern that generic components, for
example detonators, which may be used in a variety of devices, including
devices prohibited by the Bill, although not specifically designed or adapted
or provided, exported or supplied as a component for a prohibited weapon, may
potentially be used in such prohibited weapons without the knowledge of the
manufacturer. It is therefore recommended that the definition of “component
part” be amended as follows: “component part” means any identifiable component
designed or adapted specifically for the purpose to manufacture weapons
described in 5a or to form an essential and integral part of any weapon
prohibited by this Act.
·
Conventional Weapons
The Bill
contains no definition of “conventional weapons”. It is recommended that the
definition used in the National Conventional Arms Control (NCAC) Act, Act No 41
of 2002, be included in the Bill. It reads as follows:
“conventional arms” includes
(a) weapons, munitions, explosives, bombs,
armaments, vessels, vehicles and aircraft designed or manufactured for use in
war, and any other articles of war:
(b) any component, equipment, system, processes and
technology of whatever nature capable of being used in the design, development,
manufacture, upgrading, refurbishment or maintenance of anything contemplated
in paragraph (a); and
(c) dual-use goods, but does not include a weapon
of mass destruction as defined in the Non-Proliferation of Weapons of Mass
Destruction Act, Act No 87 of
1993.
·
Explosive ordnance
Whilst “explosive ordnance” is defined under section 1, this term does not seem to appear in the main body of the law itself. It is recommended that this term be removed from the Bill. (Note: If Protocol V of the CCW Convention is included in the Bill – as is suggested below – this definition should not be removed from the Bill).
· Export
Section 1 defines the term
“export” as follows: “’export’ means to supply
another person outside the Republic with prohibited or restricted weapons,
whether or not that is done in exchange for currency or any other commodity or
benefit”. The words “another person” may be interpreted to mean natural
and not juristic persons, which could potentially create a loophole in the
legislation. It is recommended that the definition of “export”, as it is used
in the NCAC Act, be used in the Bill. It reads as follows: “export”, in relation to conventional arms,
means the transfer of conventional arms from the Republic to any place outside
the Republic, and “exportation” must be interpreted accordingly.
·
Laser
Systems
“Laser systems”
is used in section 8(2) but is not defined.
·
Military
Objective
The definition
for “military objective” reads: “means any object which by its nature…”
It should be noted that there is a difference between an “objective” and
an “object” and as such there is a prospect for confusion in the
interpretation of the intended meaning. It is recommended that the word “object”
should either be replaced by “objective”, or the words “or objective”
should be added after “object”.
·
Person
The Bill does
not clearly define a “person”, but it uses the term extensively throughout the
text, with section 3(1) providing what could be deemed a definition. It is
suggested that “person” be defined under section 1.
·
Procure
The definition
for “procure” includes the words “or discovery”. This may have the
unintended consequence of making a person who innocently discovers such
prohibited weapon guilty of an offence as contemplated by the Bill. It is
recommended that the words “or discovery” be deleted from this
definition.
·
Transfer
The definition
for “transfer” includes “the transit of prohibited or restricted weapons
through the territory of the Republic by any means”. Some of the South
African Defence Related Industries (SADRI) companies are involved in de-mining
activities, the destruction of mines, unexploded munitions and ordnance etc in
terms of their main business. It is therefore conceivable that they may have to
transport prohibited and/or restricted weapons under the Bill, for legitimate
and lawful purposes in performing their duties. It is recommended that the Bill
should make a clear and executable/enforceable provision of how legitimate and
lawful possession or transfer of prohibited weapons will be regulated.
·
Unexploded ordnance
Whilst “unexploded ordnance” is defined under section 1, this term does not seem to appear in the main body of the law itself. It is recommended that this term be removed from the Bill. (Note: If Protocol V of the CCW Convention is included in the Bill – as is suggested below – this definition should not be removed from the Bill).
4.
Extraterritorial Application
Section 3 does
not make it clear how the Act would affect South African citizens serving in
foreign militaries of countries not party to the CCW Convention and/or its
Protocols. This is an important oversight which should be covered by this section.
5.
Mines, Booby-Traps and Other Devices
·
Section
6 does not include the control of stockpiling, manufacture, transfer etc of
mines, booby-traps and other such devices. It is recommended that the control
of stockpiling, manufacture, transfer etc of these restricted weapons be
clearly defined and/or provided for in the Bill.
·
Section 6(1)(c) states that mines, booby-traps and other such devices are not
to be used in any
city, town, village or concentration of civilians “in which combat between
ground forces is not taking place or does not appear to be imminent unless such
a mine, booby-trap or other device is placed on or in the close vicinity of a
military objective …” In other words, this clause allows for the placing of
devices near concentrations of civilians if there is conflict (or such conflict
is imminent) if such a device is placed on or in the vicinity of a military
objective. However, a problem arises in that the definition of military
objective specifically excludes objectives located “in a city, town, village or
other area containing a similar concentration of civilians or civilian
objects”. The definition and the clause seem to contradict each other and it is
recommended that this section of the Bill be re-worded in order to avoid any
confusion in interpretation.
·
Section 6(2)(a)(viii) states that “no person my use booby-traps or other
devices which are attached to or associated with objects clearly of a religious
nature”. The word “clearly” used in this context could create a gap in the law
which may be exploited. Someone may argue that they were unaware that something
was “clearly” of a religious nature, and thereby escape the ambit of the law.
It is recommended that the word “clearly” be removed from the Bill so as to
bring about stricter liability.
6.
Incendiary Weapons
·
Section
7 does not include the control of stockpiling, manufacture, transfer etc of
incendiary weapons. It is recommended that the control of stockpiling,
manufacture, transfer etc of these restricted weapons be clearly defined and/or
provided for in the Bill.
·
In
section 7(d) the exception “or are themselves military objectives” does not
make sense and renders the subparagraph useless. It is recommended that this
expression be excluded from the Bill.
7.
Blinding Laser Weapons
Section 8
prohibits the use of blinding laser weapons. However, the Munitions List clause
ML19f of the NCAC Act classifies it as an acceptable but controlled item.
Cognisance should be taken of the Munitions List clause and effort should be
made that this Bill does not undermine the provisions and intention thereof. It
is recommended that a decision be taken on whether these items are controlled,
prohibited or restricted.
8.
Offences and Penalties
In terms of
section 9 of the Bill, the maximum term of imprisonment is 15 years. However,
in terms of the NCAC Act, the maximum term is 25 years. Since offences under
the Bill may be considered just as serious as those under the NCAC Act, there
seems to be no justification for a lower maximum term. It is therefore
recommended that the maximum term of imprisonment be changed to 25 years.
9.
Surrender of Prohibited Weapons and Forfeiture to State
· Section 10(1) states that “any person in possession of any prohibited weapon or component part immediately before the commencement of this Act must, within six months from the date of commencement of this Act, notify a police official of such possession.” There is a risk that companies and civilians may unknowingly be in possession of components that have this potential. It is recommended that Parliament (through the Portfolio Committee on Defence) and the Department of Defence create mechanisms to inform all South Africans and especially the SADRI of the potential risk.
·
The situation could arise
that persons who are in possession of weapons, or their component parts,
prohibited by the legislation, may fail to notify the relevant police official
of such possession, as required under Section 10. It is recommended that the
Bill make specific provision for search and seizure powers to the relevant police official “to enter and inspect, at any
reasonable time, any place in which said official believes on reasonable
grounds there is prohibited weapons or component parts thereof”.
·
Section 10(5)
deals with forfeiting
prohibited weapons to the State, but it is not clear what the State is going to
do with them. There is a need to ensure that they are properly stored so as to
minimize the risk of loss and theft, since it is undesirable for these weapons
to get into the wrong hands. It is recommended that the Bill include a section
with clear guidelines for the State’s storage and disposal of such weapons.
10.
Regulations
·
A unique feature of the
Convention is its annexed Protocols. It is recommended that provision should be
made in section 14 for the Minister, by
notice in the Gazette, to ensure that
any future Protocols, if and when ratified by
· The development of indiscriminate weapons may be expected to continue to proliferate. Since amendments to this Act may take time to be enacted, it is recommended that section 14 of the Bill should make provision for Government to include additional weapons as prohibited or restricted weapons by regulation. It is furthermore recommended that this process be overseen by an independent inspectorate (see paragraph 11 on Independent Inspectorate).
11. Independent Inspectorate
The Bill makes not provision for an inspectorate that is
independent from the Ministry of Defence. It is recommended that the Bill
should make provision for such an inspectorate, as is the case with the NCAC
ACT. It is furthermore recommended that the National Conventional Arms Control
Committee (NCACC) be held responsible for this function.
12. Joint or Combined Operations
· The Bill is not clear in its application to South African security authorities participating in joint or combined operations with the armed forces of a state that is not a party to the Convention and/or its Protocols, including in, for example, peace-keeping operations. It is recommended that the following be inserted: The Department of Defence and the Department of Safety and Security may participate in operations, exercises or other military or peace-keeping activities with the armed forces of a state that is not a party to the Convention as long as such: (a) operations, exercises or activities are not in contravention of the Convention; and (b) participation does not amount to assistance in any activity prohibited by the Convention.
· If a contravention occurs, the Minister should order the termination of any further involvement in the operation, exercise or activity.
· The military force of another state (and its members) that visit the Republic in terms of an international obligation or agreement, should be bound by this Act.
On
·
Protocol V should be included in the Bill to signal
·
Protocol V should also be referred to in the Preamble and in the
definition section under “Protocols”.
·
The definitions as included in Article 2 of Protocol V should be
inserted in the definitions section (section 1) of the Bill.
·
A further section should be inserted after section 8, committing
Government to the clearance, removal and destruction of explosive remnants of
war.
·
Interpret and translate into law the Technical Annex of Protocol V in a
manner that will ensure its objective with regard to best practice for
achieving the objectives contained in Articles 4, 5 and 9 of the Protocol.
14. Development of New Technology
The Bill does not prohibit or restrict the development,
transfer etc of technology relating to prohibited or restricted weapons. It is
recommended that this be considered for inclusion in the Bill. However, careful
consideration should be given to the extent to which government controlled and
funded research and development of the said prohibited and restricted weapons
would be limited. Total prohibition of research and development could leave
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