Practice Relating to the Prohibition of Certain Types of Landmines
South Africa’s Revised Civic Education Manual (2004) states:
Prohibited Weapons. The following weapons have been prohibited:
(5) Anti-personnel (AP) Mines.
“Ottawa Convention”, Convention on the prohibition of AP mines, protocol accepted in 1997. Countries that ratified this Convention, including South Africa, agreed to totally ban the manufacturing, stockpiling and use of AP mines.
South Africa’s LOAC Teaching Manual (2008) states:
3. Means and Methods of Warfare
Several specific weapons are governed by specific treaties. These treaties establish two categories of weapons, to wit[:]
- Weapons of which the use is totally prohibited; and
- Weapons of which the use is permitted under certain conditions.
Weapons of which the Use is Totally Prohibited
- Anti-personnel Mines (The International Treaty on the Banning of all Anti-Personnel Mines, 1997)
- This Treaty is also known as “The Ottawa Treaty”.
- This treaty bans the development, production, stockpiling, transfer and use of anti-personnel mines, and requires [their] destruction.
- This ban applies to all mines designed to kill or injure people, irrespective [of] whether they are placed in the ground, in marked minefields or are remotely delivered, or whether they self-destruct or self-deactivate.
- These mines include the so-called “dual purpose mines” which are designed to be detonated by either persons or vehicles, as well as anti-vehicle mines with an anti-handling or anti-lifting device.
Weapons of which the use is Permitted under Certain Conditions:
- Land Mines and Similar Devices (Geneva Protocol II [on] the Use of Mines, Booby-traps and Other Devices dated 10 October 1980)
- Definitions (Geneva Protocol II [on] the Use of Mines[,] Booby-traps and Other Devices dated 10 October 1980 Article 2)
- A “mine” means any munitions placed under or near the ground or other surface area and designed to be detonated or exploded by the presence, proximity or contact of a person or vehicle. (But note that the use of mines that can be detonated by a person has subsequently been totally prohibited.)
South Africa’s Anti-Personnel Mines Prohibition Act (2003) provides:
5. Subject to section 7 or 8, no person may –
(a) place, possess, procure, manufacture, stockpile, transfer, deal in, import or export an anti-personnel mine;
(b) possess, procure, manufacture, stockpile, transfer, deal in, import or export a component part [of an anti-personnel mine]; or
(c) possess, procure, manufacture, transfer, deal in, import or export a plan [or design of an anti-personnel mine or a component part].
Offences and penalties
6. (1) Any natural person who contravenes a provision of section 5 is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 25 years or to both a fine and such imprisonment.
(2) Any juristic person which contravenes a provision of section 5 is guilty of an offence and liable on conviction to a fine not exceeding R1 million.
(3) Any court convicting any person of an offence under this Act may, in addition to any other punishment imposed in respect of that offence, declare any weapon, vehicle, uniform, equipment or other property or object in respect of which the offence was committed or which was used for, in or in connection with the commission of the offence, to be forfeited to the State.
Sections 7 and 8 of the Act provide for exemptions to the prohibition on possessing or transferring an anti-personnel mine “for the purposes of developing and conducting training in mine-detection, mine-clearance or mine-destruction techniques or for its destruction.”
South Africa’s Prohibition or Restriction of Certain Conventional Weapons Act (2008) states:
Mines, booby traps or other devices –
6. (1) No person may use or direct any mine, booby-trap or other device –
(a) which is designed or of a nature to cause superfluous injury or unnecessary suffering;
(b) which employs a mechanism or device specifically designed to detonate the munition by the presence of commonly available mine detectors as a result of their magnetic or other non-contact influence during normal use in detection operations;
(3) No person may use a self-deactivating mine equipped with an anti-handling device that is designed in such a manner that the anti-handling device is capable of functioning after the mine has ceased to be capable of functioning.
(4) 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 the position.
The Act defines a “mine” as
(a) … any munition placed under, on or near the ground or other surface area and designed to be detonated or exploded by the presence, proximity or contact of a person or vehicle; and
(b) includes mines laid to interdict beaches, waterway crossings or river crossings; but
(c) excludes anti-ship mines used at sea or in inland waterways.
In May 1996, at the conclusion of the negotiations on the Amended Protocol II to the Convention on Certain Conventional Weapons, South Africa announced that it was suspending use of anti-personnel landmines, pending an evaluation of the military utility of the weapon. However, it continued at that time to advocate “smart” mines as the solution to the global mine crisis. Over the course of 1996 and early 1997, South Africa’s policy shifted to one of full support for a comprehensive ban.
On 20 February 1997, just before the Fourth International NGO Conference on Landmines in Maputo, Mozambique, South Africa announced, with immediate effect, a comprehensive ban on the use, production and trade of anti-personnel landmines, as well as its intention to destroy existing stocks.
South Africa was a member of the core group of countries that took responsibility for developing and promoting the mine ban treaty. At the first preparatory meeting held in Vienna, Austria, in February 1997, South Africa was the first nation to speak, making a particularly strong statement in support of the process to ban landmines. South Africa hosted the OAU conference on landmines in Kempton Park in May 1997, a key meeting in building support among African States for a mine ban treaty. South Africa’s ambassador to the United Nations in Geneva, Switzerland, Jacob Selebi, steered the treaty negotiations towards their successful conclusion in September 1997 in Oslo, Norway. South Africa also endorsed the Final Declaration of the Brussels Conference on Anti-personnel Landmines in June 1997 and supported or co-sponsored the UN General Assembly resolutions in support of a ban on anti-personnel landmines in 1996, 1997 and 1998.
In its report on “gross violations of human rights” committed between 1960 and 1993, South Africa’s Truth and Reconciliation Commission found that the African National Congress’s use of landmines in the rural areas of Northern and Eastern Transvaal in the period 1985–1987 “cannot be condoned in that it resulted in gross violations of human rights – causing injuries to and loss of lives of civilians, including farm labourers and children”. The Commission further noted that “the use of landmines inevitably leads to civilian casualties as it does not discriminate between military and civilian targets” and that “to its credit, the [African National Congress] abandoned the landmine campaign in the light of the high civilian casualty rate”.
At the 27th International Conference of the Red Cross and Red Crescent in 1999, South Africa stated that it would “promulgate legislation implementing the Ottawa Convention into domestic law”.