South Africa

The Republic of South Africa signed the Convention on Cluster Munitions in Oslo on 3 December 2008. In a March 2009 letter to Human Rights Watch, the Department of Foreign Affairs stated that the first steps of the ratification process had been taken.^[1]

South Africa is party to the Convention on Conventional Weapons (CCW), but has not ratified Protocol V on Explosive Remnants of War. South Africa participated in the work of the CCW on cluster munitions in recent years.

Cluster Munition Ban Policy

In contrast to its leadership role in the Ottawa Process that led to the 1997 Mine Ban Treaty, South Africa was not an early supporter of international efforts to deal with cluster munitions.

In 2005, South Africa stated that its armed forces “perceive cluster weapons as valid weapons of war when applied correctly in terms of the law of war.” It said that it was in the process of developing newer generations of very reliable submunitions.^[2]

At the CCW Third Review Conference in November 2006, South Africa did not support a proposal for a mandate to negotiate a CCW protocol “that addresses the humanitarian concerns posed by cluster munitions.”^[3] It also did not endorse a joint declaration by 25 other states calling for an agreement that would prohibit the use of cluster munitions “within concentrations of civilians,” prohibit the use of cluster munitions that “pose serious humanitarian hazards because they are for example unreliable and/or inaccurate,” and require destruction of stockpiles of such cluster munitions.^[4] At the end of the Review Conference, Norway announced that it would start an independent process outside the CCW to negotiate a cluster munition treaty and invited other governments to join.

South Africa participated throughout the Oslo Process, though was seen as a reluctant participant by many. It attended the initial conference to launch the Oslo Process in Oslo in February 2007, all three international diplomatic conferences to develop the convention text in Lima, Vienna, and Wellington, as well as the formal negotiations in Dublin in May 2008. It also attended the regional Oslo Process conferences in Livingstone in March/April 2008 and Kampala in September 2008.

At the Oslo conference in February 2007, South Africa, through its silence, endorsed the Oslo Declaration which committed states to conclude in 2008 a convention prohibiting cluster munitions that cause unacceptable harm to civilians.^[5] An official of the Ministry of Foreign Affairs later said that South Africa “did not decide to support a total ban on cluster munitions,” but rather supported the Oslo Declaration’s formulation of prohibiting cluster munitions that cause “unacceptable harm to civilians.”^[6]

During the Lima conference in May 2007, South African Nobel Peace Laureate, Archbishop Emeritus Desmond M. Tutu, in a statement read to the participants, appealed to African states to commit to the Oslo Process and show the international leadership they had demonstrated in creating the Mine Ban Treaty. Archbishop Tutu called on them “to demonstrate that despite the many problems plaguing our countries we can and must be a leader of hope.”^[7]

South Africa did not intervene frequently during the Lima, Vienna, and Wellington conferences. Most of its remarks were aimed at strengthening the draft provisions on international cooperation and assistance, and victim assistance.

During the Livingstone conference from 31 March–1 April 2008, South Africa argued that the Oslo Declaration’s objective of a prohibition on cluster munitions that cause unacceptable harm to civilians meant that some cluster munitions which met certain criteria such as having self-destruct mechanisms or low failure rates should not be prohibited.^[8] Initially South Africa refused to endorse the Livingstone Declaration, the outcome document of the conference, which called on African states to support a “total and immediate prohibition on all cluster munitions.” As a compromise to allow South Africa to join, the Declaration was amended to read “all cluster munitions that cause unacceptable harm.”^[9] In opposing a categorical ban on cluster munitions, South Africa was at odds with the great majority of African states participating in the Oslo Process.

At the Dublin negotiations, South Africa served as Friend of the President to preside over informal discussions relating to compliance provisions in the convention. During discussions on definitions, South Africa continued to call for an understanding of “unacceptable harm” and spoke of the importance of accuracy and reliability factors.^[10] However, it also raised concerns about the proposed exclusion of weapons with submunitions if they met certain advanced technological criteria, saying this could create a widening gap between developing countries and countries that had the ability to procure such munitions.^[11]

South Africa stated it was not convinced that provisions on interoperability were necessary, but would consider the issue as others attached strong importance to it.^[12] South Africa was among a small number of states which explicitly supported the inclusion of a reference to UN Security Council Resolution 1325 on Women, Peace, and Security.^[13] South Africa joined the consensus adoption of the convention, and declared that the convention text was far-reaching, ambitious, and safely within the objectives of the Oslo Declaration.^[14]

At the Kampala conference in September 2008, South Africa noted that political decisions still had to be made in capital, but said it broadly supported the Kampala Action Plan, which declared that states should sign and “take all necessary measures to ratify the convention as soon as possible.”^[15] South Africa gave a presentation on stockpile destruction obligations under the convention.

After the adoption of the Convention on Cluster Munitions in Dublin, South Africa was critical of ongoing work on cluster munitions in the CCW. In a September 2008 CCW session, South Africa warned against a CCW agreement endorsing a lower standard than the new convention had already set.^[16] In November 2008, South Africa was one of 26 states that issued a joint statement expressing their opposition to the weak draft text on a possible CCW protocol on cluster munitions, indicating it was an unacceptable step back from the standards set by the Convention on Cluster Munitions.^[17] South Africa was especially critical of the proposal for a transition period.^[18] South Africa also stated that it and many other delegations were not consulted in informal consultations and that it was highly dissatisfied with the Chair’s handling of the negotiations.^[19]

Upon signing the convention in Oslo in December, South Africa’s Minister of Defense stated, “We recognize that this landmark humanitarian disarmament instrument sets a new standard in our collective commitment to the principles of international humanitarian law and South Africa is fully committed to the Convention’s full implementation. As a country that used to produce and stockpile cluster munitions that have an area wide effect, we have come to the belief that these weapons have not only become obsolete as weapons of modern warfare, but that their recent use in conflicts have shown them to cause unacceptable harm to civilians, long after the cessation of active hostilities.”^[20]

In March 2009, the Department of Foreign Affairs said that the 2003 Anti-Personnel Mines Prohibition Act would likely serve “as the principal guideline when South Africa drafts its national legislation for the Convention on Cluster Munitions.” It noted that this Act prohibits South African forces from assisting a state not party to the Mine Ban Treaty with any activity prohibited under the treaty and includes “transit” under its definition of transfers.^[21]

Use, Production, Stockpiling, and Transfer

In January 2005, the Ministry of Foreign Affairs stated, “The South African Defence Force has manufactured and used submunitions in the past, which have been phased out, and is in the process of developing newer generations of submunitions.”^[22] No details on past use of cluster munitions by South Africa are available. The South African company Denel has produced artillery cluster munitions and air-dropped cluster bombs.

South Africa’s Minister of Defense announced in Oslo in December 2008 that South Africa’s “relatively small stockpile of outdated cluster munitions” have been “earmarked for destruction.”^[23]

South Africa has not yet revealed the precise size and composition of its current stockpile. In 2005 it asserted, “Details of reliability and functioning of the current generations of submunitions in the South African arsenal are classified, suffice to say that reliability for submunitions to function as intended is currently better than 98% and at a confidence level of better than 95%.”^[24]

South Africa is thought to stockpile the M2001 155mm artillery projectile, produced by Denel, which contains 42 dual purpose improved conventional munition (DPICM) submunitions with self-destruct devices.^[25] South Africa has acknowledged possessing a type of aerial cluster bomb called TIEKIE, which was degraded for training use only.^[26]

Denel produced the CB-470 aerial cluster bomb containing 40 Alpha bomblets, although it is thought that this was produced for export purposes only. Iraq is reported to have bought the CB-470 in the late 1980s.^[27] Deminers in Zambia have encountered Alpha submunition duds.^[28]