Convention on Cluster Munitions and United Nations Arms Trade Treaty: Department of Defence briefing

Meeting report

DoD on the Ratification of the Convention on Cluster Munitions (CCM)

Mr Dumisani Dladla, Chief Director: Strategic Management at the Department of Defence (DoD), briefed the Committee on the CCM. South Africa signed the CCM in December 2008.  It speaks to the country’s constitutional interests and, as a signatory, means South Africa must assist in trying to eliminate cluster munitions as weapons as choice. The provisions of the treaty give certain obligations to the signatory states. Once a country signs, they have to take it through a ratification process in their own parliament. It becomes law only after ratification and the creation of domestic legislation, so the DoD is requesting the Committee’s approval for this ratification.

The CCM came about because discussions between states led to the view that, from a defence perspective, cluster munitions are inhumane in their use. The SA National Defence Force (SANDF) will not use them because of these negative humanitarian issues, being indiscriminate and unreliable. Weapons must be able to discriminate between combatants and civilians, and the DoD felt these were matters needed to be upheld. It also arose out of South Africa’s foreign policy, as the governing party wants to pursue effective arms control and disarmament. It was on advice by the DoD and the Department of Foreign Affairs that led to South Africa signing, and the Cabinet reconfirmed its position of 2008 last year. They still feel it is required and it consequently needs ratifying.

After the CCM is ratified, South Africa is required to deposit the instrument of ratification with the UN. The DoD must draft domestic legislation to give expression to the provisions of the treaty in South Africa. There are a set of rules that seek to limit the effect of armed conflict on non-combatants – when there is no conflict, this part of the law is not in force. It is part of humanitarian law that protects people by restricting methods of war and the tactics adopted to tackle a particular situation. To decide on this, it is necessary to make a comprehensive assessment and choose the right weapon. Tactics can not cause a superfluous injury or unnecessary pain, and there are always limitations.

The key principles of humanitarian law state that the intention is to render the other party as ineffective as possible so they can be arrested, not to destroy them. As to the issue of discrimination, the people who suffer the most are civilians, so there must be a way to define between combatants and non-combatants. The aim is to reach a point where only combatants are subjects of attack. The military advantage the state would obtain must be considered against the level of threat, and the weapons used must be proportionate to that level. The environment must also be considered – certain areas can be targeted, but everything there could be destroyed. The debate on the Convention began because their character was stigmatised -- they are inhumane in application and they are known to cause enormous and unnecessary injury.

Col Nigel Apsey, Technical Advisor at the DoD, explained cluster munitions in more detail. They are containers full of hand grenade type munitions, used in conflicts such as World War 2 and in Vietnam. They can be thrown at tanks and penetrate up to 70mm of armour plating. The upper limit size is 20kg, and each grenade within the cluster munition is known as a sub-munition. They are unguided and will explode where they fall. The presentation pictured several examples, including those carried by aircraft and artillery shells. On release, the missile opens up and releases the sub-munitions. The military liked them because they were cheap, covered a wide area and were effective against mass armoured vehicles. Many were produced during the Cold War, but they are expensive to dispose of.

The primary problem with them is their inaccuracy. If a pilot does not release them at the right place and time, they could land over a civilian area. They are unreliable and do not always detonate if they land in certain places. Incidents are still happening in Vietnam, because they are being found undetonated and lying on the ground. They are difficult to clear because they are so powerful and can penetrate thick metal. It is labour intensive to find and deal with them. To date, they have been used in 37 countries.

Mr Dladla continued the presentation, saying that one of the difficulties with the UN was that it worked on the basis of consensus – all the countries must agree for the Convention to be produced. Some discussions fall flat, because one country can block it. The countries which opposed it included the USA, China and India, forcing Sweden to run the process outside of the UN. They got like-minded countries to stigmatise cluster munitions, because once the issue was out in the open it became unpopular to support the cluster munitions, leading 93 countries to sign the treaty.

The key provisions of the Convention included the prohibition of sub-munitions of up to 20kg, excluding smart sub-munitions, because they have the advantage of being able to look for and engage a target. If they cannot find it, they deactivate and self-destruct – they are very specific when directed at a target, but also much more expensive, so countries will stop buying. The cluster munitions affected by the CCM were cheap to manufacture but expensive to destroy. The CCM also refers to victim assistance – participating states must take action to ensure victims are rehabilitated. They are required to have destroyed all cluster munitions eight years after the Convention comes into force, so if South Africa ratifies the Convention, it has eight years in which to destroy the weapons.

A state party cannot ask other countries to use them, and they are under obligation to clear any areas where cluster munitions may be within a period of time. Such weapons are used in times of war, which means sharing information is key. For example, if the SANDF had used them, they would have maps of where they were used, so would be obliged to share the information. The provisions of any treaty cannot be enforced in any jurisdiction without being domesticated. A state party may not derive benefit from a non-participating country’s use of cluster munitions, but South Africa can participate in conflicts with countries who are not parties to the treaty. They may want to use the munitions but, as a signatory of the CCM, South Africa has to try and persuade their allies not to use them and cannot derive any benefit from their use. 

113 states have joined the treaty, while 29 states are still to ratify, including South Africa. South Africa produced them and used them, as did 34 others – the treaty is pertinent to all of them. Those who bought and stockpiled included 86 countries, and 84 states are yet to join the treaty. To achieve universalisation they must be encouraged to join, as there would be greater international benefit.

In terms of the implications for South Africa, the cost of destroying its cluster munitions would be about R2 million, although this estimate was done in 2008. South Africa has a strong defence industry which is controlled through an arms process. Direction has been given to the industry to discontinue the production of cluster munitions, but it is not yet binding because it is not enforced. However, South Africa has not authorised any transfers of these weapons since 2008 because they are committed to the cause. Once it is ratified, it will not only be an encouragement for manufacturers to discontinue production, but a total ban. Trade in such munitions will be prohibited after the CCM is ratified, due to South Africa’s commitment to the treaty. They were used outside of South African territory, so whilst there are not victims inside, there are potential victims outside and they would need to be dealt with according to the terms of the treaty. Once Parliament has ratified the CCM through its own process, the DoD will participate in UN discussions around these matters.

Discussion:

Ms G Manopole (ANC, Northern Cape) asked whether there would be any penalties against those in the country producing cluster munitions after ratification of the Convention. The DoD was encouraging them not to produce at the moment, but if companies took chances, would they be penalised?

Mr G Michalakis (DA, Free State) asked when South Africa last used cluster munitions. The presentation had addressed the cost, but did not detail how to destroy such weapons. What were the methods and processes used?

Mr J Julius (DA, Gauteng) referred to terrorist organisations. Could the DoD explain their impact on this Convention? It was a concern that South Africa might make itself vulnerable to attack.

Ms TJ Mokwele (EFF, North West) said that South Africa had joined the Convention in 2008, but it had taken six years to complete the process. Why had it taken so long? Why was it so slow? If South Africa had eight years to destroy its cluster munitions there were budget implications. The longer the wait, the more money would be used to destroy them.

Mr Dladla said that dealing with those who do not comply after ratification of the Convention, lay within the enactment of domestic legislation. Once it was ratified, the DoD would bring legislation that would define the crime and prohibitions. If a company or an individual was found to have committed a crime by breaking this law, they would be imprisoned as per the standard legal process. The answer lay in legislation - it would become an offence to be found exporting or in possession of these munitions and punishable through the standard process.

With regard to the impact of the position of South Africa in the face of terrorist organisations, the country was not opening itself up to challenges. It was its commitment to the principles of humanitarian war - war should be fought because sometimes it was necessary, but in the process countries should show some responsibility and the South African military had to consider its strategies carefully. The Convention eliminated cluster munitions as weapons of war, but the country would still employ other kinds of weapons. Terrorists were not guided by humanitarian principles, but a country should not stoop to their level. South Africa would still be able to tackle those who use cluster munitions and the military would still be allowed to train to deal with such things.

As for why it was taking so long to be ratified, the problem was that it had to go through various departments, including some time in the DoD, and after general elections the new government needed to be brought up to speed. The eight years is an allowed period in which the weapons need to be destroyed. They could be destroyed in the last year, but South Africa was not going to wait until then. If it was delayed there would be an increase in cost, so the DoD would move with speed.

Col Apsey said he was a technical, not an operational, military engineer, but the last time cluster munitions were used by South Africa was during the winding up of the South West African campaign during the war with Angola. Estimating the cost of destroying the munitions was generated through the Cabinet process. They went through the figures last year, to come up with an estimate of R2 million. There were standard procedures for destroying ammunition of any shape and size, but they would effectively put a large volume of explosives over the whole thing and do a controlled explosion. There were various methods, but the ammunition technical corps would deal with them. In high temperatures, all the poisonous chemicals were reduced to their basic components.

Ms Mokwele said the DoD was responsible for its own timelines with regard to the slow ratification of the Convention, but she would accept that they were now trying to move with speed. With regard to the reference to sections 9 and 27 of the constitution, they did not speak to the items above. Had she read it incorrectly? Was it a misprint?

Mr Dladla responded that he did not want to dispute Ms Mokwele's comment. The DoD conceded it may have quoted the wrong section, but what it intended to say was that in the event of having to deal with victims of cluster munitions, the DoD must ensure it treats them with fairness, giving them the proper access to quality healthcare.

Mr S Thobejane (ANC, Limpopo) moved the approval of the ratification of the Convention by Parliament. Mr Michalakis seconded.

DoD on the United Nations Arms Trade Treaty (ATT)

Mr Dladla briefed the Committee on the UN Arms Trade Treaty, which seeks to regulate the international trade in arms. Whilst the CCM prohibits certain weapons, the ATT seeks to regulate, rather than prohibit.

In defining South Africa's position, the DoD highlighted the treaty’s key provisions and how they were dealing with them. There already was a legal framework in place and this would be used as the mechanism to enact the provisions of the treaty. The ATT was adopted by the UN in 2013 after six years of discussion. In July 2013, the Cabinet had approved South Africa’s signing of it, becoming one of the first countries to do so.

The ATT is a binding instrument that seeks to set international standards for the arms trade, seeking to avoid arms falling into the wrong hands and prevent humanitarian disasters and suffering. It is a new treaty and, in accordance of section22, will come into force 90 days after the 50^th member state signs it. Other countries will then be encouraged to accede to it. As of last week, there were already 52 countries that had ratified it, so it is already in force. South Africa will be the 57^th or 58^th country to ratify the ATT, making it one of the core countries at the forefront of the treaty – important from a foreign policy perspective.

After signing, there are domestic processes to be followed. Once the ATT has been ratified by Parliament, the DoD must make it applicable to South Africa. The constitutional imperatives outlined in section 231 led to South Africa’s active participation in these engagements. They are aware that the trade in arms leads to cross-border trade, because arms are exported between countries, but there is a need for common international understanding of the business. Illicit trade is when a state or organisation acts illegally and sells arms without authorisation.

South Africa has the biggest defence industry on the African continent, primarily for exportation. It has a responsibility to set standards, because trade is not only within the country. The signing and ratification of treaties is a good diplomatic exercise, but some countries do not commit to the principles and stick to them. South Africa was of the view that they should participate, therefore 90 days after it ratifies the treaty, it will come into action. Section 231 says it must be domesticated into South Africa legislation, but this requirement is not 100% applicable, because the DoD’s analysis suggests existing laws can deliver the obligations of the ATT. Therefore, should South Africa ratify the treaty, the infrastructure was already in place to deal with it and there would be no requirement to establish a new act, such as the Firearms Control Act, that deals with commercial arms.

The ATT aims to establish common international standards to regulate, prevent and eradicate the illicit trade in conventional arms and promote particular humanitarian principles.  It covers seven categories of weapons, because defining law means being specific and creating certainty. These categories include battle tanks, large calibre artillery systems, combat aircraft and armoured combat vehicles. If a signatory state is to export any of these, they must observe the provisions of the Treaty. There is no requirement for the establishment of a new legislative framework. The regulations of the National Conventional Arms Control Act (NCACA) are comprehensive enough to deal with section 5 of the ATT, and the National Conventional Arms Control Committee(NCACC) deals with the import and export of arms.

If a country wants to export arms, it will need to take several things into account, such as a UN embargo against a state as was the situation with South Africa during apartheid. There is currently an embargo on Syria, so as a responsible country, South Africa can not export arms there. This is the same for anywhere that there are grave breaches against the Geneva Convention and high rates of terrorism or genocide. The ATT requires that when authorising an arms transfer the state must do a risk assessment to evaluate these issues and take mitigating measures where necessary -- for example, by declining to trade with a state or engaging with them to ensure concerns are addressed before any exportation. This is covered under existing South African law, so there will be no development of new legislation to comply with the ATT. The DoD requested the committee to support the ratification of the Treaty.

Discussion:

Ms Thobejane said that the constitutional imperatives of South Africa called for public participation. What measures were in place to make sure the South Africa population was aware of the laws the Committee was ratifying on their behalf?

Ms Manopole asked about who had signed the ATT. How many countries had signed? South Africa should be aware of its partners.

Mr Dladla referred to the issue of participation. In 2002, when the National Arms Control Act was established, there was a consultation process to ensure stakeholders were aware of the DoD’s intentions. In 2008, there was an amendment to the same legislation, and the DoD again sought to consult on the issue. Even during the time when the legislation came to Parliament, public participation sessions were held that were open to every member of society. The nature of arms control lent itself to the interests of particular sectors of society. In the KwaZulu-Natal province, for example, there were villages where the citizens may not understand what this is about and would not be interested. In Pretoria, however, there was more interest in these kind of matters. Therefore, the people who were invited by Parliament or the DoD to participate in such activities were those who had an interest in the matter, but the DoD had tried their best. They continue to have outreach programmes, one of which was in the Pretoria Council for Scientific and Industrial Research (CSIR), where invitations were sent out to members of society to engage with the Department. There was an attempt to ensure that everyone understands what arms control is and how best they should support it.

As for the number of countries that had joined the Treaty, as of yesterday the information from the Department of International Relations and Cooperation (DIRCO) was that there are currently 53 that have ratified. Within the African continent, there are two, of which Nigeria is one. South Africa would be the third to join from the continent if it were to ratify. Others are largely from Europe and the Middle East. There are over a hundred that have signed, but this is not good enough and the treaty requires ratification.

The Chairperson asked whether Russia and the US were among the countries which had ratified the treaty.

Mr Dladla said he was not certain. During negotiations, it took some time to persuade the Russian and US delegations that there was a need for it. They had both signed, but he was unsure whether or not they had ratified it.

The Chairperson asked about state security. Would it not be compromised, if South Africa ratified the ATT without checking if the big states had too?

Ms Manopole added that she was worried, because the first presentation said the USA did not have any cluster munitions stockpiled, but they had produced them.

Mr Michalakis said that the US had signed but not ratified. Most of Europe had ratified, however.

The Chairperson referred to the relationship between the North Atlantic Treaty Organisation (NATO) and Libya’s Col Gaddafi. When Gaddafi tried to use weapons, they said he was not supposed to, but the weapons NATO used against Libya were authorised.

Mr Dladla said that it was a very political question. The ATT itself was not going to determine who could attack X or Y -- it was about how to deal with the buying and selling of weapons. South Africa already had an act that says it will go through a particular process in deciding on the sale of weapons. Whether the ATT came about or not, South Africa was already subscribed to a system dealing with that particular question. In the process of delivering on this system, the country must compare itself against others.

Ms Manopole moved the ratification of the ATT. Mr M Mhlanga (ANC, Mpumalanga) seconded the motion.

Adoption of Minutes

Ms Manolope said she did not understand why she had been given the minutes only at the meeting, while the presentations had been received in advance. It meant they ended up being deferred to another meeting. For example, the minutes for of 15 July stated that they had requested the minutes be perused at the next meeting. In the minutes of 28 July, it said 4.2.21 for 15 July, but this did not appear in the minutes themselves. What was going on? Why did the officials not ensure they prepared for the meeting? Either they did not take Members seriously, or they did not take their work seriously. Could the Chairperson talk to his team, so that the Members were provided with the minutes in advance? Could he ensure they were a correct reflection of the meeting?

Mr Michalakis agreed. The minutes for 15 July clearly set out what Members’ questions were, and the replies they got. On 16 July they gave only the Minister's reply, not his question setting out the points made to him. If these questions were not illustrated, the sugar-coated reply was all that was reflected. After 15 July, the minutes were not as detailed.

Mr L Nzimande (ANC, KwaZulu-Natal) said the method in which minutes were captured needed to be discussed by the Committee, particularly as it was the beginning of a new term.

Mr Michalakis said prior to 15 July, a longer format was used. All the minutes following that used the resolution-based shortened version, but it was useful to see what the question was.

Mr M Chetty (DA, KwaZulu-Natal) asked whether the Committee could get a proper set of minutes at the next meeting and deal with them first. Arguing took time – they must be dealt with at another meeting.

The Chairperson agreed that the minutes must be standardised and would be provided at the next session.

The meeting was adjourned.