Special Hearings — Chemical And Biological Warfare Hearings — 1998-06-08

MR MINTY: Thank you Chairperson, Commissioners and members of the panel. I appear before you in my capacity as Chairperson of the South African Council for the non-proliferation of the weapons of mass destruction, a statutory body established by the non-proliferation of weapons of mass destruction Act of 1993. I assumed responsibility as a chairperson in July 1995.
 Under the 1993 Act the council has very wide responsibilities and under the section describing the functions of council article 6.1 states: "The Council shall on behalf of the State protect the interests, carry out the responsibilities and fulfil the obligations of the Republic with regard to non-proliferation." Then in article 6 subsection 3 it states: 
"In order to achieve its objectives the Council may
a. control and manage all activities relating non-proliferation and provide guidance, instructions and information in connection therewith.
 c. Supervise and implement matters arising from international conventions, treaties and agreements related to proliferation affairs entered into or ratified by the government of the Republic. 
 d. obtain or promote the co-operation of departments of State, other government institutions, representatives of any branch of commerce and industry and other persons concerned." 
 And then it goes on to state under article 6.3(q): "Take the necessary steps to prevent the contravention of the provisions of this Act." 
 Chair the subject matter that we are concerned about deals with chemical and biological agents and introduces the grave risk of disclosing information that could result in the proliferation of weapons of mass destruction. When we speak of weapons of mass destruction we have in mind nuclear, chemical and biological weapons which pose enormous dangers not just for soldiers or other combatants but for millions of civilians and indeed for humanity as a whole. The fact that we are concerned today about the possible proliferation of weapons of mass destruction places this matter in a special category where the international community has judged it to constitute not only a threat to international peace and security but to the very survival of life itself on our planet. We cannot therefore speak lightly about the risk of proliferation of weapons of mass destruction. It is a very, very different category from dealing with the category of small arms or other conventional weapons whether they are tanks, frigates, fighter planes or anti-personnel land mines.  
 Lest there be any misunderstanding let me reassure you at the very outset that in seeking an in camera hearing neither I nor the Council wish in any way to interfere, limit or affect the submission of all relevant evidence or hamper the investigations of the TRC regarding South Africa's chemical and biological weapons programme. Indeed since there is substantial sensitive information which in any case cannot be dealt with in open hearings it would in fact better facilitate the work of the Commission to have a thorough, in-depth and comprehensive investigation in camera so that all the issues can be addressed without any restraint of concern about the risk of proliferation. 
 Once the investigation is concluded the TRC can decide to disclose all information which does not risk the danger of proliferation. There should be no reasonable objection to an in camera hearing and the investigation which is for the purpose of preventing the proliferation of weapons of mass destruction.
 In speaking of proliferation let me be precise and quote the 1993 Act and states under article 1.3 that: "Biological warfare agent means living organisms including viruses or infectious material derived there from which can be used to cause diseases or death in humans, animals or plants and which usually depend for their primary effects on their ability to multiply on the organism attacked." 
And then article 1.5 states: 
"Chemical warfare agent means any chemical regardless of the origin or method of production thereof which poses a real or potential risk of being used as a weapon of mass destruction and which through the specific application of its chemical action on life processes can cause death, temporary incapacity or permanent harm to humans, animals or plants."
 Chair why do we appeal for an in camera hearing in order to avert the risk of proliferating weapons of mass destruction? The disclosure of information that could result in the proliferation of chemical or biological weapons would constitute a serious contravention of South Africa's obligations as a leading state party to the chemical weapons convention and the biological and toxin weapons convention. As a state party to the CWC, the Chemical Weapon Convention, South Africa has undertaken not to- 
"...develop, produce, otherwise acquire or retain chemical weapons or transfer directly or indirectly chemical weapons to any one." And not to "assist, encourage or induce in any way anyone to engage in any activity prohibited to a state party of this convention".
 In addition article 7 of the CWC requires South Africa to -
"prohibit natural and legal persons any where on its territory or in any other place under its jurisdiction from undertaking any activity prohibited to a state party under this convention. Not to permit in any place under its control any activity prohibited to a state party".
And to -
"...extend its penal legislation to any activity prohibited under this convention undertaken anywhere by natural persons possessing its nationality in conformity with international law."
 The very clear and specific requirement not to proliferate on any front exists in the words "or transfer directly or indirectly chemical weapons to anyone." The obligation accepted by state parties to this convention is that each state will "never under any circumstances" allow proliferation. In terms of article 3 of the biological and toxin weapons convention South Africa has undertaken together with other state parties-  "...not to transfer to any recipient whatsoever directly or indirectly and not in any way to assist, encourage or induce any state, group of states or international organisations to manufacture or otherwise acquire any of the agents, toxins, weapons, equipment or means of delivery specified in article 1 of the convention."
 Chair once again the clear obligation not to proliferate exists in the words "not to transfer to any recipient whatsoever directly or indirectly." Besides the fact that any proliferation would constitute a grave breach of our international legal obligations arising out of being a state party to the two international conventions, such proliferation would also contravene (a) the South African non-proliferation of weapons of mass destruction Act 1993. As well as (b) the declared policy of the government on the non-proliferation of weapons of mass destruction. 
 The 1993 Act was promulgated -
"to provide for control over weapons of mass destruction and the establishment of a council to control and manage matters relating to the proliferation of such weapons in the Republic."
Despite the comprehensive mandate of the Council the question of proliferation is considered to be so serious that the 1993 Act with regard to confidentiality states in article 21.2(a):
"If the minister is of the opinion that the disclosure of certain information may compromise the functions of the Council or the interests of the industry he may direct that any proceedings excluding court proceedings be held in camera."
 Like all state parties South Africa has to take its international obligations to treaties and conventions seriously and ensure that nothing is done to undermine or violate them or to jeopardise the maintenance of international peace and security. We should not approach the grave matter of proliferation in such a manner as to raise doubts or concerns about democratic South Africa's commitment to solemn international obligations. We need to be seen not like in the past when the regime acted as an outlaw violating all basic norms of international behaviour but as a new member of the international community that acts as a good and responsible world citizen which will honour and comply with the letter and spirit of our international obligations.
 If states unilaterally decide to act in a manner that involves risking proliferation it would not only seem to undermine the provisions of treaties and conventions but also raise questions about the good faith and reliability of those states. Of course any breach of the provisions of treaties and conventions would also create concerns about the value of specific safe guard provisions which are often agreed in painstaking multilateral negotiations on issues that affect international peace and security.
 Full compliance with our declared policies and national legislation as well as with international treaties and conventions is critical and there must be no doubt as to whether through our legitimate consideration of human rights violations we are prepared to risk the proliferation of weapons of mass destruction. Democratic South Africa has inherited a terrible legacy including everything associated with the costly and destructive development of nuclear weapons. We are the first and so far only country that has given up nuclear weapons. And in August 1994 the cabinet decided that South Africa should 
1 - Be an active participant in the various non-proliferation regimes and supplier groups.
 And -
 2 - adopt positions supporting the non-proliferation of weapons of mass destruction with the goal or promoting international peace and security.
 Chair democratic South Africa is today recognised by members of the non-aligning movement and the OAU as well as by the developed world and the nuclear weapon states as a major player in matters of global disarmament and non-proliferation. South Africa has the standing and the capacity to promote dialogue and interaction at a global level often regarding issues which have hither to divided the north and the south. And our initiatives have led to consensus being reached on the extension of the nuclear non-proliferation treaty which was subsequently followed by Africa declaring itself a nuclear weapon free zone. We are members of the NPT, the CWC and the BTWC. Three areas relating to weapons of mass destruction.