ISSUES RELATING TO THE CERTAIN CONVENTIONAL WEAPONS BILL
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
The following issues relating to the Bill, as it currently stands, should be taken into consideration.
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.
· 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).
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”.
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.
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.
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.
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.
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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