Submission relating to the Prohibition or Restriction of Certain Conventional Weapons Bill, 2007
The Institute for Security Studies (ISS) is a regional
research institute operating across sub-Saharan
At present the Institute runs the following Programmes:
ISS would like to commend the Minister of Defence and the
Minister of Foreign Affairs in their efforts to implement their international
obligations under the various Conventions South Africa has signed up to and
which have come to be regarded as international humanitarian norms and laws.
This Bill is more evidence that
The ISS has limited its comments on the Bill to those sections that relate to aspects that it feels are missing from the Bill as presently drafted and if added would enhance South Africa’s compliance with the obligations of the Convention.
It is the view of the ISS that in the Preamble, note should be made of the fact that the nature of the 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) is such that in the future additional Protocols may be appended. For example, to provide for technological advances in weapon development – new weapons which need to be prohibited or restricted due to their use causing superfluous injury or unnecessary suffering or new issues that arise such as the need to actively deal with post-conflict legacies such as unexploded ordnance and other explosive remnants of war. (For more on Protocol V see below: CCW Protocol V: Explosive Remnants of War.)
The ISS recommends that anti-personnel mines also be defined as follows: “anti-personnel mine” means an anti-personnel mine as defined in the Schedule to the Anti-Personnel Mines Prohibition Act, 2003 (Act No. 36 of 2003).
In addition, while blinding laser weapons are defined, ‘laser systems’ are not (see Section 8(2).
Chapter 1: Extraterritorial Application
This section does not make it clear how the Act would affect
Chapter 4: Regulations
As mentioned above, a unique feature of the CCW is its
annexed Protocols. Provision should be made in Chapter 4 (14) for the Minister,
by notice in the Gazette, to ensure
that any future Protocols, if and when ratified by
Joint or Combined Operations
The Bill is also 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 therefore 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.
It is also recommended that if a contravention occurs, the Minister must order the termination of any further involvement in the operation, exercise or activity. In addition, the military force and its members of another state visiting the Republic in terms of an international obligation or an agreement between that state and the Republic should be bound by this Act.
CCW Protocol V: Explosive Remnants of War
Protocol V should therefore also be referred to in the Preamble and in the definition section under “Protocols”.
The ISS would be willing to further expand on the comments provided in this document at a public or private hearing should the Minister of Defence and/or the Portfolio Committee on Defence deem such an event necessary.
If you have any questions regarding this document, please do not hesitate to contact Noel Stott or Ben Coetzee at the ISS.
Senior Researcher / Chercheur Principal
Arms Management / Gestion des Armes
Institute for Security Studies / Institut d'Études de Sécurité