Submissions of the International Committee of the Red Cross on the Prohibition or Restriction of Certain Conventional Weapons Bill, 2007



The International Committee of the Red Cross ("ICRC") welcomes the opportunity of expressing its views on the Republic of South Africa's Prohibition or Restriction of Certain Conventional Weapons Bill which deals with the prohibition or restriction of usage of certain types of weapons.


The object of the Bill presently tabled before the Defence Portfolio Committee is to give effect to the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects ("CCW") and its first four Protocols. The Republic of South Africa is party to the CCW and to Protocols I through to IV.[1]



A. International Humanitarian Law


The CCW and its Protocols are considered part of International Humanitarian Law ("IHL"), a body of law that protects certain categories of persons and limits the means and methods of warfare during times of armed conflict, whether international or internal in nature. IHL does not question the lawfulness of a conflict (jus ad bellum) but seeks to apply humanitarian principles in warfare (jus in bello), it being recognised that even war has its limits.


The CCW and its Protocols and this Bill seek to give effect to the underlying IHL principle that the right of the parties to an armed conflict to choose methods or means of warfare is not unlimited. It is prohibited to employ weapons, projectiles and material and methods of warfare (i) of a nature to cause superfluous injury or unnecessary suffering and (ii) that are inherently indiscriminate or have indiscriminate effects.[2]



B. Compliance


The Republic of South Africa has demonstrated its commitment to limit the suffering caused in times of armed conflict to combatants as well as to civilians. This is evidenced with the adoption of the Anti-personnel Mines Prohibition Act, Act No. 36, 2003, to implement the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, of Government Notice No. R 16 dated 26 February 2002, to give effect to the 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction Biological Weapons, and of Government Notices No. 754 dated 2 May 1997, amended No. R77, dated 29 January 2004, No. 152, dated 29 January 2004, giving effect to the 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction. The Republic of South Africa is also party to the 1949 Geneva Conventions and to their 1977 Additional Protocols I and II.


There are at present 102 State Parties to the CCW, 100 to Protocol I, 89 to Protocol II, 87 to Amended Protocol II, 95 to Protocol III and 86 to Protocol IV.


South Africa participated in the work of the Third Review Conference held 7 – 11 November 2006 in Geneva. In the Conference's final declaration as adopted with oral amendments at the final plenary meeting of the Conference on 17 November 2006, the State Parties reaffirmed their conviction that the CCW is significantly reducing the suffering of civilians and combatants. The importance of compliance with the provisions of the CCW and its Protocols was emphasized.


The State Parties at the Conference declared their commitment to implement fully the CCW and the Protocols to which they are respectively party (Protocols I-IV in the case of the Republic of South Africa), and to take all appropriate steps, including legislative and other measures, as required, to prevent and suppress violations of the CCW and Protocols by persons or on territory under its jurisdiction or control. The measures envisaged included appropriate measures to ensure the imposition of penal sanctions against persons who, in relation to an armed conflict, contravene the prohibitions imposed by the CCW and its Protocols. Each State Party is also to require that its armed forces issue relevant military instructions and operating procedures and that armed forces personnel receive training commensurate with their duties and responsibilities to comply with the relevant provisions of the CCW and its Protocols.


The passing of this Bill by the Republic of South Africa is in accord with the above decisions and declarations of the Third Review Conference and gives effect to its obligations under the CCW and its Protocols.



C. Weapons regulated by the CCW and the Protocols


Weapons deemed to cause “superfluous injury or unnecessary suffering” are considered illegal under IHL. This IHL rule stems from the fundamental principle that the only legitimate purpose of war is to weaken the military forces of an opponent. [3] Recently, the International Court of Justice stated that this rule constitutes one of the inviolable principles of international customary law and is a fundamental rule to be observed by all States.[4]  This rule of customary international law constitutes one of the few measures intended to protect combatants from certain weapons which are deemed abhorrent or which inflict more suffering than required for their military purpose.


The weapons the use of which has been restricted or prohibited under the CCW and its  Protocols fall foul of the basic IHL rule, in that, by their use, they go beyond that which is necessary to weaken enemy military forces.  In addition, given their indiscriminate effect when used, a number of these place civilians and other protected persons in peril during armed conflict.


Protocol I: Non-detectable fragments


Protocol I prohibits the use of any weapon, the primary effect of which is to injure by fragments that are not detectable in the human body by X-rays.


Protocol II: Mines, booby-traps and other devices


Protocol II, as amended in 1996, prohibits or restricts the use of landmines (both anti-personnel and anti-vehicle), booby-traps and certain other explosive devices. A booby-trap is any device designed or adapted to kill or injure, and which functions unexpectedly when a person disturbs or approaches an apparently harmless object (e.g. opens a door). Other devices covered by the Protocol are: manually emplaced munitions and devices, including improvised explosive devices, which are designed to kill or injure and which are actuated manually, by remote control or automatically after a lapse of time.


Generally, the Protocol prohibits (i) using mines, booby traps and other devices if they are of a nature to cause unnecessary suffering or superfluous injury (ii) using these weapons if they are designed to explode when detected by mine-detection equipment, (iii) directing these weapons against civilians or civilian objects, (iv) using these weapons indiscriminately.


Parties to the conflict which use mines, booby traps and other devices must (i) remove them following the end of active hostilities, (ii) take all feasible precautions to protect civilians from their effects, (iii) give effective advance warning of any emplacement of these weapons that may affect the civilian population, (iv) maintain records on the locations of such weapons, (v) take measures to protect missions of the United Nations, the ICRC and other humanitarian organizations against the effects of these weapons. Under Article 14 of Protocol II, States Parties must take all appropriate steps, including legislative and other measures, to prevent and suppress violations of the Protocol by persons or on territory under its jurisdiction or control.


Finally, Protocol II also proscribes a number of specific rules in relation to each of the weapons.


Protocol III


Protocol III regulates the use of Incendiary weapons, which are understood to be weapons that are primarily designed to set fire to objects or to burn persons through the action of flame or heat, such as napalm and flame throwers. The Protocol prohibits in all circumstances to use them against civilians. It is also prohibited to make any military objective located within a concentration of civilians the object of attack by air-delivered incendiary weapons. Finally, it is prohibited to make forests or other kinds of plant cover the object of attack by incendiary weapons unless they are being used to conceal combatants or other military objectives.


Protocol IV


Protocol IV prohibits the use of laser weapons specifically designed to cause permanent blindness, and the transfer of such weapons to any State or non-State entity. When using laser systems, all feasible precautions must be taken to avoid permanent blindness. These precautions must include training of armed forces and other practical measures.



D. Suggested amendments to Bill




(i) To definition of blinding laser weapon add “laser”: ‘‘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;


(ii) Whilst there are definitions of explosive ordnance and unexploded ordnance, these terms do not seem to appear in the main body of the law itself.


Section 10 - Surrender of prohibited weapons and forfeiture to State: The situation could arise that 'persons' may be in possession of weapons, or their component parts, prohibited by the legislation yet fail to notify the relevant police official of such possession, as required under Section 10 of the Bill. In these situations, it may be necessary to provide specifically 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".




The International Committee of the Red Cross remains available to provide further details to the Portfolio Committee as may be required.



[1] The Republic of South Africa has yet to ratify Protocol V on Explosive Remnants of War.

[2] These underlying principles are to be found in the 1977 Additional Protocol I to the 1949 Geneva Conventions to which the Republic of South Africa is party.

[3] See 1868 Declaration of St. Petersburg

[4] See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, para. 79.