The Southern African
The history of 20th century illustrated, at great
human cost, the dangers of not placing restrictions on the accumulation and use
of conventional and other weapons – not only in the hands of national
governments, but also those that are controlled by non-state actors. We thus welcome all attempts that are being
made to curb the harmful effects of conventional weapons and measures taken that
2.1 Before turning to the specifics of the Bill, it is important to remind ourselves why this legislation is necessary. World-wide conventional weapons are incorrectly used in situations which exacerbate conflicts. In addition to unnecessary collateral civilian deaths, some conventional weapons are left behind after conflicts have been resolved and continue to be of harm to the community.
2.2 At the international level, it is estimated that more money is being spent on the military and arms than was the case during the Cold War. This represents a serious problem because it diverts resources away from development and the ‘Millennium Goals are left lagging behind while military priorities claim scarce funds. Security for all is enhanced when disarmament and development steps complement one another’. Together with the government’s efforts to alleviate poverty, we believe that this Bill is a step in that direction.
2.3 It is very easy, however, to get caught up in statistics and philosophical arguments, and we would do well to remember that behind each statistic is a human being, whose life – and the lives of their family – are negatively impacted upon.
In the teaching of the
‘a close and indissociable relationship between arms and violence. It is because of this that arms can never be treated like ordinary commercial goods. Similarly, no economic interest can of itself justify their production or transfer and the law of profit cannot be supreme’.
2.5 In considering the Bill, we would urge the Committee to bear in mind that the goal of the legislation is the protection of life and the dignity of each person. While not denying the right of States or individuals to defend themselves, this right is tempered by the notion of sufficiency – the idea that access to weapons should not be unlimited.
3. Positive aspects of the Bill
3.1 In addition to the aspects of the Bill that we have welcomed above, we would like to express our support for the measures that try to minimise civilian injuries and casualties (especially the precautions mentioned in Clause 6). Furthermore, we welcome Clause 3 (extra-territorial application) which will allow the State to prosecute South Africans abroad who are engaged in illegal activities.
3.2 There are, however, some concerns and issues of clarity which we have and it is to these that we now turn.
4.1 Clause 1: Definitions
4.1.1 Conventional weapons
The Bill contains no definition of ‘Conventional Weapons’. The National Conventional Arms Control Act (41 of 2002) defines conventional arms as:
“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, 1993 (Act No. 87 of 30 1993)
We would ask that this definition be included in the Bill.
The definition in the Bill states that ‘‘‘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.
The National Conventional Arms Control Act defines “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”.
We would ask that this definition substitutes the definition currently contained in the Bill.
4.2 Clause 6 (1) (c) mines, booby-traps and other devices
This clause states that 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
(i) 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.
A problem, however, 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 would seem to contradict each other and we would ask the Committee to re-word this section of the Bill to avoid any confusion in interpretation.
4.3 Clause 6(2)(a)(vii): Prohibitions
The clause 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 lacuna 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. We would ask the Committee to remove the word ‘clearly’ so as to bring about stricter liability.
4.4 Clause 6(4): Remotely delivered mines
The clause reads: ‘No person may use remotely delivered mines unless they are, to the extent feasible, equipped with an effective self-destruction or self-neutralisation mechanism and have a back-up self-deactivation feature, which is designed so that the mine will no longer function as a mine when the mine no longer serves the military purpose for which it was placed in position’.
It is not clear why anyone should have access to these kinds of weapons and why they should be allowed to keep them. We would ask the Committee to clarify what the purpose of this clause is and what harm is being remedied by its inclusion.
4.5 Clause 10 (5): Surrender of prohibited weapons and forfeiture to State
This clause 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 risk of loss and theft, since it is undesirable for these weapons to get into the wrong hands. We would ask that the Bill includes a section with clear guidelines for the State’s storage and disposal of such weapons.
We commend all attempts by government to comply with international humanitarian law and see this legislation as a positive step. While having some concerns we are confident that the Committee will keep at the forefront of its deliberations the notions of respect for life and the dignity of the human person – which are contained in our Constitution and which we hope to realise, not just in our country, but in the broader international community as well.
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 It is estimated that over $ 1 trillion went to military spending in 2004 as quoted in the Intervention by Archbishop Migliore at the First Committee of the General Assembly of the United Nations on General and Complete Disarmament (Item 67).
 Archbishop Migliore, ibid.
 ‘The International Arms Trade: An Ethical Reflection’, the Pontifical Council for
Justice and Peace (